Cubans, Deportations, and …

Posted by Jessica Travis in Criminal Law Blog











 Cubans, Deportations, and Criminal Cases

By Jessica Travis on Wednesday, April 19, 2017

In January, during his last few days in office, former President Barack Obama repealed a longstanding immigration policy, often referred to as the “wet foot, dry foot” policy. This policy was enacted by former President Bill Clinton in 1995 in response to large numbers of Cubans fleeing Cuba on small boats and rafts, and arriving in the United States. Under the “wet foot, dry foot” policy, anyone who was intercepted at sea (a wet foot) was sent back to Cuba, whereas those who made it onto U.S. soil (a dry foot) were allowed to stay in the country as a legal resident.

Being a legal resident of the U.S. is not the same as being a U.S. citizen. A legal resident is someone from another county, that has applied for, and been granted the right to live in the United States. When legal resident status has been granted, the legal resident is able to live and work in the U.S., and are given a green card to prove their

status. U.S. citizens are people who were either born in the U.S., have U.S. citizen parents, or who have gone through the naturalization process to become a citizen.

Legal residents are subject to deportation, whereas U.S. citizens cannot be deported, unless they obtained their status as a citizen fraudulently. Anyone who is not a U.S. citizen, and is charged with a crime, can face deportation if they plead guilty or nolo contendere (no contest), or are found guilty after a trial.

When someone is a legal resident, their attorney must warn them about the possibility of deportation when they decide to enter a plea in a criminal case. The trial judge is also required to make sure that the person understands that entering a plea could result in deportation if they are not a U.S. citizen. If the court fails to warn someone about the deportation consequences when entering a plea, the person could file a motion to withdraw a guilty plea if they meet certain requirements. The person must be able to demonstrate that:

  • the court did not inform them of the deportation consequences as a result of the plea;
  • they would not have taken the plea if they had been informed of the deportation consequences; and
  • that they are subject to deportation because of the plea.

While legal residents can face the possibility of deportation if they enter a plea in a criminal case, under the “wet foot, dry foot” policy, Cubans were not deported for taking a plea when charged with a crime. Because of this aspect of the policy, many Cubans may have previously been advised by their attorneys that the plea would not subject them to deportation.

previously been advised by their attorneys that the plea would not subject them to deportation.

Cubans who were protected under the “wet foot, dry foot” policy may have previously been given good advice by their attorneys and taken a plea, but now with this policy repealed, this advice is inaccurate. Because of the repeal of the “wet foot, dry foot” policy, many people are left asking whether Cubans may now find themselves facing deportation? And is this a basis to allow them to withdraw their plea?

While the answers to these questions are not yet known, if you or someone you know is Cuban and has previously entered into a plea, and because of that plea are now facing deportation proceedings, it is best to speak to a knowledgeable attorney.

co-authored by Patricia Blotzer

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