Thread: VA. Judge Defies Higher Court to Revisit Case of Deprtation

Virginia Judge Defies Higher Court to Revisit Case of Immigrant Set for Deportation

By Judson Berger
Published February 08, 2011
FoxNews.com

A Virginia judge has openly defied his state's Supreme Court, ignoring a key immigration ruling in order to reopen the case of an immigrant slated for deportation.

In a move that stunned attorneys involved in the case, Loudoun County District Court Judge Dean Worcester declared last week that he would not heed a January opinion by the Virginia Supreme Court. That ruling said judges could not use a certain legal provision to revisit convictions for immigrants who claim their attorneys did not tell them they could be deported.

Worcester, who already has reopened several immigrants' cases, did not agree. But rather than take it on the chin and follow precedent, the judge granted himself an exception.

"If this court were to abide by (the Virginia Supreme Court ruling), a constitutional violation will stand uncorrected," the judge wrote. "The court will not allow this to happen."

Neither the defense nor the prosecution saw that coming. Rob Robertson, the immigrant's attorney in the case, told FoxNews.com that, although he was delighted with the ruling, he was "shocked" by it.

"I think I'm more shocked than most other people that Judge Worcester ruled the way he did," Robertson said.

The prosecutor in the case has filed an appeal.

In the judge's opinion, Worcester acknowledged that his court is bound to follow precedent, particularly when the precedent comes from a higher court. However, he said, that standard "is not absolute and there are rare exceptions."

Consider this one of them.

The case in question involved an immigrant who pleaded guilty to a misdemeanor larceny charge in 2005. He was originally charged with a felony count but as a result of the plea agreement received a suspended sentence of 12 months in jail -- meaning he did not serve time. However, according to the court he was never told by his attorney that his conviction could have ramifications for his immigration status. Sure enough, the federal government in September 2010 ordered him deported to Peru.

Because he was not in custody, the defendant could not challenge his treatment on a habeas corpus claim. Under Virginia law, the window also had long since passed to file a motion to reopen the case. So the defendant, Edgar Cabrera, pursued an avenue which had been used by other immigrants facing deportation -- citing a "writ of error" claiming he received ineffective counsel in violation of the Sixth Amendment.

Backing up this defense was a U.S. Supreme Court ruling a year ago, Padilla v. Kentucky, which held that an attorney "must inform a client whether his plea carries a risk of deportation."

But the Virginia Supreme Court came back last month and ruled that the "reliance on Padilla is misplaced." Further, the court said defendants can only challenge their case on these grounds by citing an error that would have prevented a judgment.

"While ineffective assistance of counsel may render a judgment voidable upon the necessary showing, it does not render the trial court incapable of rendering judgment," the court ruled.

Though that ruling dealt with the cases of two other immigrants facing deportation, not the case of the immigrant ordered back to Peru, Robertson said he assumed the state Supreme Court decision effectively ended his client's chance at a new hearing.

"Frankly, I had already told my client he was going to lose," Robertson said.

Instead, Worcester threw out Robertson's client's guilty plea and reopened the case, scheduling a preliminary hearing for March 31.

Robertson, while noting that the "fight" is not over, said the ruling was correct, even if unexpected. He said the state Supreme Court had basically taken away defendants' right to seek any "remedy" after the fact should they realize later on that their legal advice was not sufficient.

"A lot of these people don't figure out they're in trouble ... until immigration comes knocking," he said.

But Loudoun Commonwealth's Attorney James Plowman, who on Tuesday appealed the decision to the local Circuit Court, said the judge's argument "assumes that there is a remedy for every situation, which there's not."

Plowman said he was "a little bit shocked" by Worcester's ruling, arguing that for a judge to vacate a ruling years down the road is tantamount to a dismissal.

"If you start vacating cases that are five and 10 years old, you might as well just dismiss them, because the likelihood of the prosecution being able to resurrect a case that's 10 years old, track down witnesses ... you really ... put our backs to the wall here," he said.

http://www.foxnews.com/politics/2011/02 ... portation/

"If you start vacating cases that are five and 10 years old, you might as well just dismiss them, because the likelihood of the prosecution being able to resurrect a case that's 10 years old, track down witnesses ... you really ... put our backs to the wall here," he said.

I never could understand how a defendant can receive a just, speedy and fair trial if he or she is tried based on another court case. There is no way any accused offender can be tried fairly with this type of court proceedings. Each accused has a legal right to a fair trial. Also, I believe each trial case should be tried pertaining to individual criminal charges, instead of using another court ruling to justify a court case.

The whole thing is crap. Law says very clearly one thing, all that should be done is prove beyond reasonable doubt they have done it. All these precedents and other crap is bogus.

Then also this illegal should have been aware of his illegal status in the US. Hence knowing legally he should be deported and in the court of law, law is meant to be followed.

So when are the pro illegals gonna demand we educate all the illegals in the US in US law so they are fully aware of their "rights".

Your either guilty or not guilty end of story. Lets see your legal paperwork right now or a simple judge signature and your gone.

Originally Posted by ReformUSA2012

The whole thing is crap. Law says very clearly one thing, all that should be done is prove beyond reasonable doubt they have done it. All these precedents and other crap is bogus.

Then also this illegal should have been aware of his illegal status in the US. Hence knowing legally he should be deported and in the court of law, law is meant to be followed.

So when are the pro illegals gonna demand we educate all the illegals in the US in US law so they are fully aware of their "rights".

Your either guilty or not guilty end of story. Lets see your legal paperwork right now or a simple judge signature and your gone.

Possibly, we citizens need to post signs written in Spanish explaining the laws of the U.S. since undocumented aliens claim they do not understand the laws here in the United States, and so often use this excuse as a tool to be eliminated from court cases.

The statement "ignorance of the law is no excuse" is an ancient legal doctrine: Ignorance of the law excuses no man; not that all men know the law; . . .
www.rbs2.com/cc.htm

First, illegal aliens are not even entitled to attorneys because it is a civil offense. Secondly, just because the illegal says his attorney didn't tell him is not good enough. That's what the appeals process is for. Lastly, attorneys are officers of the court and have a duty to tell judges the truth, therefore, if a judge asked an attorney and if he informed the client, then case closed.

There needs to be a judicial review of this rogue judge.

Dixie

Huh Dixie? Sounds like the state SC is the rogue judges. The illegal was convicted of a plea deal on his crime. Afterwards was deported as being an illegal alien is a deportable offense. Why is the judge a rogue for refusing to re-try these cases because the state SC has an "opinion" only that the illegal wasn't informed that a criminal conviction means deportation?

Or did I misread something?

Originally Posted by ReformUSA2012

Huh Dixie? Sounds like the state SC is the rogue judges. The illegal was convicted of a plea deal on his crime. Afterwards was deported as being an illegal alien is a deportable offense. Why is the judge a rogue for refusing to re-try these cases because the state SC has an "opinion" only that the illegal wasn't informed that a criminal conviction means deportation?

Or did I misread something?

Immigration cases are civil law, not criminal.

He's not refusing, the judge is reopening the illegal alien's case, which should be going to appel, if the illegal alien was not satisfied with the decision but he knows he doesn't have any ground for an appeal since he copped a plea. This judge is just doing his own thing to benefit the illegal alien.

The illegal alien, made a plea bargain. Now he's claiming that he didn't know pleading guilty would end in deportation.

Here's what the judge is defying by reopening the case:

Loudoun County District Court Judge Dean Worcester declared last week that he would not heed a January opinion by the Virginia Supreme Court. That ruling said judges could not use a certain legal provision to revisit convictions for immigrants who claim their attorneys did not tell them they could be deported.

He's using his courtroom to challenge the ruling, instead of the alien filing an appeal and as the article states, the prosecution is filing an appeal of the judges decision to ignore the higher courts decision and reopen the case.

This is as crazy as someone agreeing to a divorce and then claiming they didn't know the marriage would end in divorce because the attorney didn't tell them.

Dixie

Added to Homepage:
http://www.alipac.us/article-6067--0-0.html

Ahh thanks Dixie, was getting it mixed up as who said what. Thought the SC was saying re-open and the judge was trying to refuse.

Pretty retarded using the ignorance excuse.