.Attorney fights for immigration-neutral ruling

After leaving a Petaluma bar one night in February 2019, Miguel Rodriguez was arrested for drinking and driving. Rodriguez, who grew up in Sonoma County, is an undocumented immigrant and a participant in the Deferred Action for Childhood Arrivals (DACA) program.

The DACA program, established in 2012, does not entail a path toward citizenship for participants but does provide some stability to participants, commonly known as Dreamers. Participants admit that they are deportable, but are protected from deportation during their enrollment, which is renewable every two years. While enrolled, they are also eligible for a work permit. 

About 200,000 DACA recipients live in California. In 2017, Trump tried to end the DACA program, though it was upheld in the Supreme Court in June 2020. On Tuesday, July 28, Trump announced new plans to limit the scope of the program. 

Rodriguez asked to use a pseudonym in order to protect his family.

Because DUI convictions make a person ineligible for DACA, the legal proceedings which kicked off that night—and are still ongoing—set off a series of changes in Rodriguez’s life that a U.S. citizen facing the same charges would not experience.

Rodriguez’s lawyer Heather Wise says that the Sonoma County District Attorney’s office ignored their legal responsibility to consider her client’s immigration status and to avoid immigration consequences while bringing him to justice.

Because Rodriguez’s experience is not especially unique among immigrants navigating the justice system in California, his story sheds light on the challenges created when one’s legal status in the U.S. is insecure.

“We think of immigration as solely controlled by the federal government, but really, local players have a lot of power over deciding who gets deported and who doesn’t,” Rose Cahn, a senior staff attorney at the Immigration Legal Resource Center (ILRC) explains. “Prosecutors in their charging and plea bargaining posture really are the gatekeepers to the deportation pipeline.”

At the time of his arrest, Rodriguez was enrolled in college, working and living away from home. He had two drinks at a Petaluma bar and left near closing time. At a stop light, he came to a complete stop part-way into an empty crosswalk. When Petaluma police arrested Rodriguez, his blood alcohol content (BAC) was 0.127 percent, over the legal limit of 0.08 percent, according to court documents.

If a U.S. citizen is convicted of a first DUI offense, common consequences may include three to five years of probation, DUI school, fines, six months of driver’s license suspension, installation of an interlock breathalyzer device in one’s car, and more. Upon completion of DUI probation, those convicted are eligible to petition for expungement, which allows a plea to be withdrawn and the case dismissed.

The consequences are more serious for DACA recipients. A DUI is considered a significant misdemeanor offense and makes Rodriguez exempt from DACA eligibility, which could subject him to ICE detention, among other ramifications.

Wise and Rodriguez asked the district attorney for a plea to an alternate charge colloquially known as a “wet reckless,” which would have allowed for Rodriguez to be sentenced to all of the same possible consequences as a DUI without making him ineligible to renew his DACA.

Wet reckless is a charge of reckless driving that carries a note referencing that alcohol or drugs were involved. No one can be initially cited for a wet reckless—it’s a reduced sentence that someone charged with a DUI may plead guilty to in a plea bargaining.

The prosecutors on Rodriguez’s case refused the bargain, stating in an email that they considered the collateral consequences and, “given the [defendant’s] BAC and public safety risk, a wet is not appropriate.”

Rodriguez says, “We spent nine months urging the DA to consider the immigration consequences in my case, essentially reminding them of their own responsibility. I completed a six-month DUI Program—part of the sentencing conditions—before I was convicted of the crime to show the court I take this matter very seriously. A misdemeanor conviction that comes more than six months after the arrest date represents a gross failing of the justice system.”

During the plea bargaining process, Rodriguez and Wise proactively offered that the defendant could, in exchange for the reduced charge, face harsher consequences than the proposed three years of probation the prosecution sought. In exchange for an immigration-neutral sentence, Rodriguez offered to serve additional jail time, complete community service hours, install an interlock device, or wear a continuous alcohol monitoring device to prohibit drinking entirely.

The deputy district attorney prosecuting the case rejected every offer, according to emails and court documents reviewed by the Bohemian. The prosecutor’s supervisor also stated that he did not believe a wet reckless was in the interest of justice.

“It’s just plain false to assert that consideration of immigration consequences requires giving some lesser punishment to non-citizen defendants; it doesn’t,” Cahn says. 

With no option for a wet reckless, Rodriguez was ineligible to renew his DACA status, which requires renewal every two years. It expired in August 2019. Without DACA, Rodriguez lost his job, which meant that he could not afford to keep living on his own. He quit the college classes he was taking in the South Bay and moved back home with his parents.

In December 2019, Rodriguez entered a “no contest” plea to the DUI charges and was sentenced to three years of probation.

On Wednesday, July 29, he will return to court and a judge will rule on his petition for an early termination of probation and expungement. If Rodriguez’s case is expunged then, he will have until August 30, 2020—one year from its expiration—to renew his DACA status.

So, why do prosecutors need to care about a defendant’s immigration status?

In 2016 and 2017, California Legislature passed Penal Code Sections 1016.2 and 1016.3, respectively. Co-authored by the ILRC, the first law states that defense attorneys have a constitutional obligation to advise and defend noncitizen clients from the immigration consequences of offenses. The second law places a parallel requirement on prosecutors to always consider the avoidance of the immigration consequences when engaging in plea bargaining.

Functionally, these penal codes mean that the district attorney is asked to recognize that loss of eligibility for DACA is a punishment that may be more severe than is warranted by a defendant’s charges.

Cahn explains that, for years, prosecutors would often say that to consider immigration consequences of crimes would violate equal protection or somehow give benefit to non-citizens.

“[This legislature] gives us a very powerful tool to say, ‘No, in fact, you must consider those consequences, and you must consider the avoidance of those consequences because the legislature directs you to do so.’” 

The Bohemian emailed to Sonoma County Chief Deputy District Attorney Brian Staebell with general questions about his office’s understanding and application of the 2016–17 state laws governing the treatment of immigration consequences.

Staebell told the Bohemian, “California Legislature placed a responsibility on the prosecution to consider adverse immigration consequences as one factor during plea negotiations. We, as an office, are very aware of our responsibilities in this regard, and we have held training on the subject on more than one occasion.”

However, Wise argues that the Sonoma County’s District Attorney’s office is not truly considering Rodriguez’s immigration status in the proceedings, from their lack of urgency to their lack of acknowledgement of the inequitable impact that the punishment they sought for him carries.

Cahn says that California lawmakers wrote the recent laws because they recognized the value of the state’s immigrants and the impacts of deportation.

“California has the highest immigrant population of any state in the country—one out of every four of us was born outside the country,” she says. “One out of every two children goes to bed at night with a parent born outside the U.S. We as a state understand that deportations wreak havoc on our communities. These laws require that all the key stakeholders in the criminal legal system understand the immigration consequences of crimes and, in effect, take pains to mitigate or eliminate those consequences.”

Cahn says that immigration consequences are often illogical and there is often nothing preferential about dispositions that do not trigger immigration consequences versus those that do.

The ILRC argues that a wet reckless is an appropriate alternative charge to a DUI for immigrant defendants, specifically because it allows for a judge to impose any of the same consequences in the interest of public safety.

“We’re not saying someone should escape accountability for their alleged conduct, and we understand prosecutors have a duty to protect public safety,” Cahn says. “We are saying that protecting public safety doesn’t require that the defendant also be deported at the end of their criminal case.”

In their article, “A View Through the Looking Glass: How Crimes Appear from the Immigration Court Perspective,” judges Dana Leigh Marks and Denise Noonan Slavin write, “The United States Supreme Court has called the effect of being ordered deported or removed to be the equivalent of banishment, a sentence to life in exile, loss of property, life or all that makes life worth living, and, in essence, a ‘punishment of the most drastic kind.’”

Cahn says, “Increasingly we are seeing prosecutors adopt immigration policies that govern their office’s practices—Alameda County, Marin County, Contra Costa County, all have newly revised or newly-adopted immigration policies that provide some direction to all of the line DAs.”

So far, Wise says that the Sonoma County District Attorney has not taken that step. 

Cahn says that she has worked closely with elected district attorneys in the aforementioned counties and led trainings for the California District Attorneys Association, but has never worked with the Sonoma County prosecutor office. 


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