Between ICE and a Hard Place: For Immigrants, Plea Bargains a Harsh Deal

Bianca Torres won’t tell her five-year old son where his father, Edgar Morin really is.

“We don’t want him to know anything yet,” Bianca said. “We told him, ‘daddy is gonna work far away. Don’t worry about it-just behave’.”

Right now, she can only hope that far away does not mean back in Ecuador, where he was born. He’s at an Immigration Customs Enforcement, (ICE) detention center in Greenfield, Massachusetts-where he’s been since January 30 of this year. Meanwhile Bianca is trying to make ends meet in his absence. She puts on a brave face for their son, all while dealing with the anxiety the situation is bringing her on a daily, hourly, minute by minute basis.

“I’ve been stressed, depressed-all I’ve been doing is crying,” Bianca said. “Right now my son is keeping me strong. I can’t let myself fall, because my son needs me.”

It all started on June 28, 2011. Bianca was driving Edgar’s car in East Haven when she got into an accident. East Haven police got to the scene, and Edgar arrived after she had been taken away in an ambulance.

What happens next is where accounts differ. Edgar told Bianca that East Haven Police Officer Dennis Spaulding denied his request to remove his tool box-for his job as a construction worker-from the car. When Edgar attempted to get into the car anyway, he was allegedly grabbed by the Spaulding and thrown to the ground.

But police gave a different version-Edgar was accused of assaulting an officer, Bianca said.

An article in The New Haven Register detailed Spaulding’s allegations, which claimed that Edgar jumped onto the back of the tow truck that was taking the car away for inspection, and refused to step off.

Regardless of what really happened, deciding that at trial carried the potential for Edgar to go to prison for as long as 10 years. Naturally, he opted not to take chances and accepted a plea bargain that would only slap him with probation-or so he thought.

“He was probably gonna lose the case and get 10 years in jail if he kept fighting,” Bianca said. “We have our kid, so obviously he didn’t wanna face 10 years in jail.”

Here’s the problem: Edgar’s guilty plea pinned him with an aggravated felony, which, under immigration law, means deportation.

“You have to be deported, and you have to be held in detention,” said Elliot Friedman, a Yale School of Law Student who is assisting the New Haven Public Defender’s Office on Edgar’s case. “Basically the only thing we can do in this case is get the charge reduced to something that wouldn’t be an aggravated felony.”

John Lugo is an organizer with Unidad Latina en Accion, (ULA) a New Have-based worker and immigrants’ rights advocacy group. They, are also assisting Edgar and his family.

“Is that justice?” Lugo said at one of ULA’s meetings at the People’s Center on Howe Street. “No, because you never had the right to prove you were innocent. The system is designed to prevent people from proving their innocence.”

Edgar might have not so easily taken the plea deal if he had known that it would result in deportation, Bianca said.

“We never got that explanation, that if he pled guilty, he would get deported,” she said. All they said is if you plead guilty, you get two years’ probation.”

Ed McCarthy is a 2012 Yale School of Law graduate working in New York. While in New Haven, he spent a year in the Public Defender’s Office advising attorney’s on the very immigration law details that he says commonly fall through the cracks in criminal proceedings.

“It’s definitely a major problem,” McCarthy said. “Historically, defense attorneys were trained to learn about criminal defense. More and more it’s become that there are collateral consequences that need to be accounted for.”

Collateral consequences such as a two-year probation handed down from a plea bargain becoming a one-way ticket out of the country-something Bianca says Edgar cannot afford. He came to the United States when he was 18, and his family and friends eventually followed.

“Over there in Ecuador, he doesn’t have anybody,” Bianca said. “For him to go back there, it’d be like starting over.”

In 2010, the Supreme Court ruled in Padilla v. Kentucky that criminal defense attorneys are obligated to inform their clients that a guilty plea can carry deportation. So one avenue is for Edgar to have the sentence wiped on the grounds of ineffective counsel, but that would put him right back where he started: in between a rock and a hard place, McCarthy said.

“There’s a possibility he could have the plea undone,” he said. “The issue then, is, do you go to trial? So you’re back at square one. Where do you take it?”

For now, all Bianca and Edgar can do is wait for word from their lawyers. Meanwhile, ULA is running a campaign geared toward drawing public attention to the case. Just recently, Edgar’s family members delivered a letter to Senators Chris Murphy and Richard Blumenthal at a press conference.

“That’s how you win a deportation case,” Lugo said. “You have to go out and organize a community. You have to make a lot of noise.”

Although it’s not legally relevant, the fact that Spaulding was found guilty in October of racial profiling practices-which included writing false arrest reports-that targeted Latinos made a lot of that noise for them, although it will take more work to get Edgar’s charge reduced, Friedman said.

“As long as the conviction stands, regardless of the circumstances, you have to be deported,” he said.

New Haven Public Defender David Forsythe, Edgar’s attorney in the case, did not return phone calls for comment.

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