Immigration has become a hotly contested issue with strong feeling on each side. Unfortunately, we have allowed our emotions to get the best of us, at the expense of an honest debate. No where is this more clear than with the recent coining of the phrase anchor babies. The term anchor baby refers to a mother who takes advantage of our countries long-standing belief in birth right citizenship by sneaking across the border and having her child here. Birth right citizenship is the Constitutional guarantee that when a person is born within the US they are automatically a citizen, even if their parents entered illegally.
Immigration laws offer harsh punishments for individuals who do not cross the border lawfully. With rare exception a person who enters this country without inspection at a port of entry cannot receive a lawful status without returning to their home country to process the paperwork and often leaving the United States triggers a 3 or 10 year bar from them returning.
This could be argued as a just punishment for individuals who usurp our immigration laws and cross our border illegally. Clearly it would an injustice to the millions of individuals who apply lawfully, pay filing fees, and wait a number of years if illegal entrants were rewarded for their behavior with a legal status. Thus, in most cases the law is arguably just.
The first U.S. casualty of the war in Iraq surprisingly was not a US citizen. Instead he was a Guatemalan orphan, Marine Lance Corp. Jose Gutierrez, who made his way to the United States to find a better life. He joined the Marines to earn money for college and to support his family still living in Guatemala.
Non-citizen soldiers have fought and died in every conflict the United States has been involved in. As of June, 114,601 men and women not born in the United States were serving in the military. This number makes up almost 8 percent of the 1.4 million active-duty members of the military. Of these, more than 12 percent did not have U.S. citizenship.
Despite their many sacrifices it is estimated that this country has deported over 4000 non-citizens who served honorably in the military since World War II. This does not need to be the case as now service in the military makes it very easy to gain citizenship quickly.
How much immigration law does a criminal defense attorney need to know when representing a non-citizen client?
A considerable amount, it would now appear. On March 31, 2010, the Supreme Court of the United States stipulated that criminal defense counsel has a 6th Amendment duty to inform a non-citizen client of any immigration consequences that will be suffered as the result of a guilty plea. The case, Padilla v. Kentucky, 559 U.S. ___ (March 31, 2010), marks a major change in criminal defense counsel’s obligation to alien clients, and significantly increases a criminal defense attorneys responsibility to provide advice regarding immigration law.