At this year’s AILA Annual Conference, there will be a number of programs dealing with the overlap between immigration law and criminal law, and with post-conviction relief after Padilla. The “Criminal Law for Immigration Litigators” panel will discuss the need for procedural avenues with which to pursue post-conviction relief, and “Protecting Our Clients: How to Combat Anti-Immigrant Legislation” should provide great ideas for community mobilization. I highlight these programs because for me, in many ways, 2012 is, has been, and will be about changing post-conviction relief in Illinois.
On February 16, state representative LaShawn Ford introduced HB 5750 to amend the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq). The amendment “[a]uthorizes persons who are subject to being confined by the State, local, or federal government as a result of a State criminal conviction to seek a post-conviction hearing in the trial court.” The Act as it reads today limits post-conviction relief to persons who are subject to state custody, which led to the Illinois Supreme Court’s ruling in People v. Carrera, 940 N.E.2d 1111 (2010) that Padilla relief is unavailable under the Post-Conviction Hearing Act to persons who have successfully completed their criminal sentences.
The result is that if two aliens rely on erroneous legal advice and plead guilty to different crimes, one punishable by 10 years in prison and the other by 2 years probation, and 8 years later they find out that the erroneous advice leads to a drastic immigration consequence, the alien who is still in prison may use the Act to challenge his conviction, but the alien who successfully completed his probation 6 years earlier may not – even if the former is at Shawnee Correctional Center and the latter is in ICE custody 30 miles away at Tri-County Detention Center.
Noncitizens who rely on erroneous advice often do not learn of the disastrous immigration consequences of that advice until years later. A routine traffic stop may result in mandatory detention and expedited removal, an application for naturalization may lead to immigration court, a family trip abroad could end with deferred inspection. The Padilla court noted that “[d]eportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” and recognized the need for a remedy when noncitizens are injured by the erroneous advice of counsel. HB5750 would ensure that persons with meritorious claims for post-conviction relief in Illinois have a procedural vehicle with which to present those claims.
So, what does this have to do with me? Fellow AILA attorney (and teacher, humanitarian, and activist) Royal Berg currently serves as co-chair of the Human Rights Committee of the Chicago Bar Association. Last year he asked me to serve as legislative liaison for the committee, and we began work on what has since become HB5750. The committee heard from the wife of a man who was in ICE custody as a result of a years-old guilty plea which, he had been told by his attorney, would not constitute a criminal conviction (which was true under Illinois law, but not under immigration law). We heard about the hardship that she and their children were enduring as a result of his ongoing detention, and we decided to focus on amending the Post-Conviction Hearing Act. Our proposal was endorsed by the Hispanic Lawyers Association of Illinois, the AILA Chicago Chapter, and the CBA Board of Managers, and last month it was introduced in Springfield by Representative Ford. The bill is currently before the Rules Committee, and may not advance to the full House until the Fall, or even next year, but in the coming months we will work with groups across Illinois to build support for the measure, in hopes that it will eventually move forward and become law.
It has been great so far to work with so many dedicated attorneys on this important project – I hope to work with many more in the months ahead, and I look forward to learning about similar efforts underway across the country during the AILA Annual Conference. Please check back for updates on the progress of HB 5750!