Voluntary Deportation as a Condition of Probation?

On May 12, 2004, when Maricela Rodriguez Gutierrez was placed on community supervision, she agreed her community supervision status would subject her to twenty-nine supervisory conditions.  Fifteen of those conditions were general conditions, seven were financial, two were drug-related, two were education-related, and three were immigration-related.

One of the immigration-related requirements of her community supervision (i.e. probation) was that she obtain legal immigration status by the end of twelve months, and if she did not obtain legal status, to leave the country and reside in a location where she does have a legally authorized status.  As you can imagine, she failed to do this (if she had satisfied the condition, then I probably wouldn't be writing about it).  Accordingly, the trial court revoked the community supervision. 

Appellant now argues that the term requiring that she leave the United States was void and, thus, cannot support her revocation.  The 6th District Court of Appeals (Texarkana) agreed.  The Court held that upon revocation of community supervision, the violated term—that the defendant leave the U.S.—was void and the revocation could not stand.  The Court explained that immigration matters are within the exclusive jurisdiction of the federal government therefore a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.

See the Court's full opinion in Gutierrez v. State HERE.

"No Hablo Ingles"

Contreras v. State,

A Mexican citizen was convicted in Denton County for intoxication assault and failure to stop and render aid.  On appeal, he lodged a Miranda-esque complaint, contending that the trial court erred by not suppressing statements he made after being arrested but before being informed of his rights as a Mexican citizen to contact the Mexican consulate.  After contacting officials in Arizona for advice on immigrataion policy, the 11th District Court of Appeals (Eastland) rejected the Appellant's argument and affirmed the conviction.  (Of course, I am only kidding about the Arizona thing, but the court really did affirm the conviction.)

The Vienna Convention on Consular Relations grants foreign nationals who have been arrested, imprisoned, or taken into custody the right to contact their consulate and requires the arresting government authorities to inform the individual of this right “without delay.”

Rocha v. State, 16 S.W.3d 1, 13 (Tex. Crim. App. 2000).  Notwithstanding the fact that the U.S. Supreme Court has held that the Vienna Convention does not control Texas or national law (Medellin v. Texas, 552 U.S. 491 (2008)), the Appellant asserts that he was denied procedural due process and as a result, any statements he made prior to being afforded his right to contact his consulate should be suppressed.

The 11th Court, however, refused to recognize any Due Process right in this instance, stating:

...because the Vienna Convention was drafted to govern relations between sovereign nations and foreign consular officials, Sierra v. State, 218 S.W.3d 85, 86-87 (Tex. Crim. App. 2007), we do not believe that its language creates a substantive right sufficient to implicate the constitutionally required procedures police officers must follow before interrogating a foreign national.  Moreover, courts have not read the treaty to require notification before instituting any police interrogation, but only within three working days of the arrest. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 362 (2006) (Ginsburg, J., concurring in judgment) (citing Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 52 ¶ 97 (Judgment of Mar. 31)).  Thus, even if we are in error and the Vienna Convention does create a benefit enforceable under the Due Process Clause, we do not believe that this required the police to inform Contreras of the right to contact his consulate before beginning a custodial interrogation.

Just in case the court misinterpreted the law regarding foreign relations, the Court further explained that:

Even if we are in error, Contreras is not entitled to the suppression of any evidence. The Supreme Court has held that suppression under the federal exclusionary rule is not an appropriate remedy for a violation of the Vienna Convention.  Sanchez-Llamas, 548 U.S. at 350. In Rocha, the Texas Court of Criminal Appeals held that the exclusionary rule under TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, including the Vienna Convention.  Rocha, 16 S.W.3d at 18-19. The trial court, therefore, did not err in admitting Contreras’s statements.

So the takeway from this case is that  (in Texas) foreign nationals are not afforded any enhanced procedural due process right to contact their consulate prior to being questioned by police officers.  Of course, Miranda would still apply (perhaps, even in Arizona), but there is no further right created by the Vienna Convention and evidence will not be suppressed for failure to follow its mandates.

Move Over Sheriff Joe. Texas Town Enters the Immigration Fray.

Farmers Branch is a town of law and order ... a patriotic, American-loving town.

In Famer's Branch, Texas it remains against the law to rent a home to illegal immigrants despite a court ruling striking down the ordinance as unconstitutional.  But the city plans to fight back.  For more, check out this Fort Worth Start Telegram article.

The Practical Implications of Padilla v. Kentucky

Addressing the question that we've all been thinking - What does Padilla actually mean for criminal defense attorneys? - Scott Greenfield provides some good commentary (complete with links to others in the community who have also considered the issue) over on his blawg, Simple Justice.  Rather than copy his content, I'll just direct you to his post HERE.