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Congressman seeks to pass new immigration law

Posted on June 23, 2011 3:00 AM EST

In 2005, the United States Congress passed a new law which forbids federal immigration authorities for indefinitely detaining illegal immigrants with prior criminal histories. Our community has always been the home to people living illegally in the United States. This reality has always been a cause for concern for Miami criminal defense lawyers because a criminal conviction or any type of criminal record for that matter is sometimes more devastating than a similar result obtained on behalf of a U.S. citizen. While the majority of illegal immigrants are deported for various criminal offenses on a daily basis, illegal Cuban immigrants cannot be deported to their home country. Federal law prevents Cuban immigrants from being deported. The current state of law prevents illegal immigrants from being held in detention in excess of six months. The majority of non-Cuban illegal immigrants are deported to their country of origin within weeks or even days. Illegal Cuban immigrants are eventually released to resume their lives within the United States.

Congressman Lamar Smith of Texas has proposed a bill that will allow immigration authorities to indefinitely detain illegal immigrants with criminal records for violent crimes, such as murder and sexual battery, and for drug offenses, such as cocaine possession or marijuana trafficking. While deportation is an unpleasant thought for anyone to say the least, this proposed change in the law would affect illegal Cuban immigrants the most, as they would be incarcerated indefinitely, or at least until the U.S. policy towards Cuba is amended. While the proposed bill is not imminently going to become law, the change has garnered a lot of attention from both proponents and opponents. While the bill does not specifically refer to Cubans, everyone knows that it applies to them as they are the largest body of people residing in the United States that are not subject to deportation.

Proponents of the bill claim that the bill does not target Cubans, but all dangerous non-deportable individuals with criminal records for violent offenses, certain drug offenses and for certain crimes of moral turpitude. Immigration laws allow for the deportation of persons with records for aggravated felonies which are outlined in the federal statutes. The bill is not supposed to be retroactive if passed into law, but opponents of the bill claim that language within the proposed law will allow for detention for crimes committed prior to and deportation orders signed prior to the enactment of the legislation. Opponents also claim that the passage of the bill will result in thousands of illegal immigrants being jailed for years.

While the passage of the law is not imminent, all illegal immigrants and defense attorneys alike must be keenly aware of the harsh consequences of accepting pleas. Lawyers must know what criminal offenses allow for deportation and advise their clients accordingly. With individuals with prior records, the best option to prevent deportation is to file a motion for post-conviction relief with the hope of vacating a prior judgement and sentence and having the charge dismissed. Current changes in the law have made it increasingly difficult to obtain this result. Cut off periods have been instituted by the courts which limits the time for individuals to file motions that did not receive the legally required immigration warnings from the court or for individuals who received affirmative mis-advice from their lawyers regarding the possible deportation as a result of entering a plea. Anyone being held in immigration custody or facing deportation should seek out an experienced lawyer in handling these matters to determine the best course of action to prevent deportation.

Cubans Who Can't Be Deported Could End Up Detained in U.S., Miami Herald.com, June 21, 2011.