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The Miami Herald

Legal Fight Over Deportation Warnings Heating Up In South Florida

Gabriel Hernandez arrived in the United States from Nicaragua when he was 2 years old. Now 30 and a legal resident, he boasts a bachelor’s degree and works as a successful computer network administrator for a Miami bank group.

There is one blemish on his record. At 19, he was arrested on charges of selling LSD.

In an outcome typical for first-time offenders, Hernandez pleaded guilty and accepted a year of probation in return for a promise that no felony conviction would appear on his record.

But Hernandez insists he never understood that the plea deal could wind up getting him deported to Nicaragua.

In front of the Florida Supreme Court this week, Hernandez’s lawyers will argue his plea deal should be thrown out — and the outcome could affect hundreds of similar cases in Florida.

The legal wrangling comes two years after the U.S. Supreme Court threw out the conviction for a Kentucky man,  Jose Padilla, whose lawyer failed to warn him that he would be deported after pleading guilty. This is the case that Hernandez and hundreds of others hope would allow them to strike down their convictions.

But state and federal courts across the country, have split on whether the Padilla decision applies to past cases like Hernandez’s. Miami’s appeals court didn’t think so, and last year denied Hernandez claim – and has done the same for 71 similar cases.

“When Gabriel took the plea, he did not agree to take a plea and be sent back to the country in which his mother took him when he was one and half years old,” said Hernandez’s current attorney Michael Vastine, director of St. Thomas University’s Immigration Clinic. “His attorney never told him that.”

Padilla, a Honduran native, had lived in the United States for 40 years and served in the Vietnam war. He pleaded guilty to marijuana trafficking in 2001 and was never warned that the deal could lead to his deportation.

In March 2010, the U.S. Supreme Court voted 7-2 to overturn his conviction in Kentucky, saying his criminal defense lawyer did not warn him of the possible deportation. His case still is pending on lower court appeals.

The decision spurred hundreds of appeals from people who believed that they, too, should be able to re-open their old cases. That included Hernandez, whose move to get his plea conviction thrown out based on “ineffective assistance of counsel” was denied by a trial court.

In a Palm Beach case, Martin Ioselli is set to be deported Thursday to his native Argentina. In 2009, Ioselli — represented by a hurried assistant public defender — accepted a plea deal that also included a withhold of adjudication for possessing oxycodone, according to lawyer Brian Balaguera.

But when Ioselli, who married a U.S. citizen and has a 2-year-old daughter, applied for residency, he was ordered deported because of the drug conviction. While Ioselli signed a “rights waiver” form that warns him of potential immigration consequences, the judge never orally told him he could face deportation, Balaguera said.

“I’m mad. I’m angry. My daughter is going to stay without a father,” Ioselli said. “If the Supreme Court helps me, and my felony is dropped to a misdemeanor or thrown out, I can apply to return to the country.”

The U.S. Supreme Court ultimately will settle the “retroactivity” issue itself. Last week, justices agreed to hear in October the case of a Chicago woman who sought to have her conviction overturned based on the Padilla opinion.

But some say the high court’s conservative bent is not encouraging in this instance.

“Given this court, I’m not optimistic,” said Ediberto Roman, a Florida International University law professor who specializes in immigration issues. “If you look at the issue of efficiency and political and judicial philosophy, I think the court may very well come to the conclusion that retroactivity is not applicable.”

This isn’t the first time that a high-court decision has led to a large number of convicted immigrants appealing their old cases.

In 2006, the Florida Supreme Court ruled that immigrant defendant had a two-year window to appeal their convictions if they could show that they were never warned of the possible deportation. The cases hailed mostly from the 1990s and earlier, before Florida began requiring judges to warn defendants that they “may” face immigration consequences by taking a plea deal.

In Hernandez’s case last year, the Third District Court of Appeals, which presides over Miami-Dade and Monroe counties, decided that the judicial warning of “may” was not strong enough and should be sharper: that a plea “will” subject a defendant to deportation.

But the appeals court also ruled that Padilla’s case was not “one of those rare federal constitutional decisions warranting retroactive application” — basically, Hernandez and others were not entitled to have their old cases tossed out.

On Tuesday, Hernandez’s lawyers, Vastine and Sui Chung, will argue to the Florida Supreme Court that the Padilla case should indeed be applied to past cases. Justice will also hear from a similar defendant, Leduan Diaz, who is represented by the local chapter of the Florida Association of Criminal Defense Lawyers.

The U.S. Attorney General’s Office says that applying it retroactively “would be overwhelming to the administration of justice” — flooding the courts with thousands of cases, most of them so old that witnesses or evidence in the cases have disappeared.

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