As soon as he entered a guilty plea, the federal government had strong grounds to deport him — and did so two months later.
Immigration lawyers and advocates say Lopez’s fate has become commonplace. In Virginia, and across the country, illegal immigrants who are convicted of minor, non-violent crimes often find themselves lumped in with violent offenders and deported under highly complex federal immigration procedures even as the Obama administration works to improve immigration enforcement procedures and focus on more serious offenders.
In 2010, many commonwealth’s attorneys across Virginia began automatically waiving jail time for mostly minor, misdemeanor offenses to save money. When prosecutors automatically waive jail time, judges no longer have to provide defendants with lawyers, potentially saving the state millions of dollars.
So it was with Lopez, who entered the country illegally in 2005, according to Immigration and Customs Enforcement. Neither he nor his family could be reached for further comment.
Prince William Commonwealth’s Attorney Paul B. Ebert (D) had automatically waived all jail time for misdemeanor marijuana possession and a host of other charges. That made it possible for the General District Court judge in Lopez’s case to negotiate a guilty plea without appointing a lawyer: All Lopez had to do was pay a $186 fine and forfeit his driver’s license for six months.
The Catch-22: Under federal law, illegal immigrants convicted of drug offenses are more likely to be deported, which is something defense lawyers are now required to explain. But Lopez didn’t have a lawyer, according to court records.
Advocates contend that prosecutors and judges in Virginia are essentially setting deportation traps for illegal immigrants charged with minor crimes by offering plea deals after waiving jail time and declining to appoint defense counsel.
“Where do they get off trying to get an uncounseled criminal defendant to plead guilty before they get a lawyer?” asked Victor M. Glasberg, an Alexandria civil rights lawyer who raised the issue with the Virginia Supreme Court. “It’s knowingly aimed at the Latino community, and it is part of Prince William’s ethnic cleansing program. [Judges] know the law.”
Prosecutors and judges flatly deny the accusation, saying that jail time for many nonviolent offenders makes no sense, that their budget pressures are real — and that they are not responsible for whatever federal immigration problems defendants may have.
Underlying the debate is
Padilla v. Kentucky
, a 2010 U.S. Supreme Court case in which the justices ruled that criminal defense lawyers must advise clients who are not U.S. citizens that they could be deported because of a guilty plea.