1st person account: Why Padilla matters

Immigration law’s human impact is undeniable. Growing up in South Texas, there was no more poignant feature of law than stories of friends or family members running from la migra. These days, I spend my days immersed in immigration law, but from a wholly different perspective. The United States citizen lawyer-turned-law professor simply can’t feel the immense impact of immigration law in the same way as the millions of people whose lives are uprooted by immigration law’s infinite inanity.

That’s why the message pasted below struck a cord with me when I received it in my inbox a few weeks ago. It’s as much a reminder that immigration law has the power to destroy lives as it is that creative, conscientious lawyering can improve lives. With the sender’s permission, here’s the message I received with only minor stylistic edits. I’ve deleted the author’s name to protect anonymity.

Thank you for the work you do providing immigration info.  I read your posting about how the Supreme Court is going to decide if Padilla is retroactive.  I would like to get out the message how serious a marijuana conviction can be for a non-citizen who leaves the country.

Our family just went through a nightmare situation where a 21 year-old legal permanent resident from [Country X] was facing permanent exile from the United States for a Class C misdemeanor for attempt to possess less than thirty grams of marijuana when he was eighteen. This is his only crime. Although he received deferred adjudication and was not told he could not travel, upon return to America this January he was found to be inadmissible for a controlled substance conviction.

It sounds hard to be believe but a legal permanent resident with a misdemeanor marijuana conviction is inadmissible under INA § 212(a)(2)(A)(i)(II). As he had not been in the country for seven years he could not apply for a hardship waiver. As any immigration judge would tell you, in a case like this there would be nothing they could do to give the person relief. He had traveled several times before this and immigration let him enter the country never telling him not to travel but this time the system stopped him and he was detained by the Department of Homeland Security in harsh conditions while his case was pending for two and a half months since a controlled substance violation makes him subject to mandatory detention.

The only thing that saved him was the Padilla vs. Kentucky ruling. The county court could have fought this or charged him again and found him guilty but they had mercy on him. The Department of Homeland Security released him, although they could find him permanently inadmissible for even having admitted to having a conviction upon trying to enter. The rules are so strict that if a person applying for a visa admits to having tried marijuana, even many years ago, they are inadmissible. If not for the Supreme Court ruling and the help of the court and district attorney he would be permanently banished from his home and family for life. I hope the Supreme Court sees how important this ruling is. 

I hope people realize that for permanent legal residents these are one-strike laws and that if a person has a criminal conviction leaving the country is often a horrible mistake. There is a thirty gram marijuana exception while in the country but if a person leaves the country there is no waiver to be admitted.

Congress needs to change these laws. Why are we detaining and trying to send back a person with a misdemeanor conviction? The Obama Administration reports they are deporting “”criminal aliens” but they do not say what amount of those are people like our family member with a minor charge.