The Trump administration has made much of its wide immigration enforcement priorities. Every migrant who comes across the criminal justice system has reason to worry about being placed into the immigration detention and deportation pipeline. While this risk always existed under President Obama, the last ten months have seen many elected officials prominently announce their intent to defy the Trump administration by proactively helping migrants steer clear of ICE’s broad gaze. Even in nominally migrant-friendly communities, a palpable risk remains that mundane encounters with the criminal [...]
Colorado Supreme Court nixes anti-smuggling crime
In a long due decision, a divided Colorado Supreme Court held the state’s human smuggling crime unconstitutional. The court’s decision in Fuentes-Espinoza v. People, No. 13SC128 (Colo. October 10, 2017), returns public attention to 2006 when the state legislature enacted a host of anti-migrant legislation. In Fuentes-Espinoza, the court concluded that the state legislator overstepped its authority that year when it criminalized conduct already regulated by federal immigration law. The U.S. Constitution’s Supremacy Clause commands that state law must give way anytime it affects the same [...]
Constitutional collision in Colorado anti-immigrant bill
By César Cuauhtémoc García Hernández and Christopher N. Lasch The virulent tone of immigration rhetoric that propelled Donald Trump to the presidency has come to Colorado. A Republican state legislator proposes to bar cities or local governmental units from limiting their cooperation with ICE. And then he goes where even President Trump hasn’t dared: criminalizing the very act of voting in favor of limiting cooperation with ICE. The proposal, House Bill 17-1134, titled the “Colorado Politician Accountability Act,” is a constitutional train wreck. If our students submitted this for a course, [...]
Colorado’s human smuggling crime
As the United States Supreme Court has repeatedly reiterated since the late nineteenth century, immigration law is an area of federal dominance. The power “to forbid the entrance of foreigners . . . or to admit them only in such cases and upon such conditions as it may see fit to prescribe[,]”[1] the Court wrote in 1892, “is vested in the national government.”[2] More recently, the Court explained in 2012 that the federal government has “broad, undoubted power over the subject of immigration.”[3] Despite the federal government’s expansive reach in immigration law, the states nonetheless [...]
Challenging Colorado’s human smuggling crime
Organizations with long histories of defending migrants recently joined a critical challenge to Colorado’s human smuggling crime that is pending before the Colorado Supreme Court. The organizations argue that Colorado’s statute is preempted by federal law and thus unconstitutional. Brief for National Immigration Law Center et al. as Amici Curiae Supporting Petitioner, Fuentes-Espinoza v. People, 2014 WL 1190061 (Colo. 2014). Bernardino Fuentes-Espinoza was convicted of violating Colorado Revised Statute § 18-13-128 which punishes assisting migrants with entering remaining in, or traveling [...]
Is not guilty by reason of insanity an immigration conviction?
A former student recently asked me about the immigration law implications of being found not guilty by reason of insanity. Specifically, the student wanted to know whether this was a “conviction” for immigration law purposes? Having never encountered this situation before, I was unsure. Frankly, I’m still not sure, but here are my thoughts. The starting point seems to have to be the INA’s two-pronged definition of “conviction,” INA § 101(a)(48)(A). I’ll start with the second prong because I think that’s usually going to be easier to examine. INA § 101(a)(48)(A)(ii) requires that “the judge [...]
CO Supreme Ct: Motion to withdraw available for ineffective assistance claim based on deferred judgment
The Colorado Supreme Court held that noncitizens trying to challenge a deferred judgment based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), may do so under the state’s rule for motion to withdraw pleas but they may not seek review of the judgment and sentence because none exists. Kazadi v. People, No. 11SC264, slip op. (Colo. Dec. 20, 2012) (Hobbs, J., writing for the court; Bender, C.J., dissenting). Deferred judgment, the court explained, essentially holds the criminal proceeding in abeyance. As such, no conviction or sentence is entered. In the court’s words, “a deferred judgment is a [...]