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Through the window of his mobile home in Northern Colorado, José Espino-Paez can see the snow beginning to fall. He and his family had intended to drive to Denver this afternoon, and there’s no sense in changing plans now. Espino-Paez pulls one of his nice shirts, a maroon button-down, over his broad shoulders, which have bulked considerably in the years since he’s returned to working the fields in Weld County. He readies his kids in their winter clothing, and he and his wife, three boys—eight, 10, and 14—and little girl, who is six, pile into their old van.
About an hour later, on the afternoon of January 3, 2015, Espino-Paez pulls over in front of a nondescript brick building in Denver’s Art District on Santa Fe and parks in the slush that is already accumulating on the street. A sign affixed to the front of the building reads: Meyer Law Office, P.C., Hans Meyer, Attorney at Law. Espino-Paez and his family enter the office and sit at a long conference table in a back room. The kids turn their attentions to cell phones and toys, and Espino-Paez begins to talk.
After 30 minutes or so he pauses. He looks at his four children at the end of the table. His eyes become watery. He turns toward his wife, who is sitting to his right and has not said more than a few words since they arrived, and points at a bottle of water. She passes it to him, and he takes a sip and clears his throat.
Espino-Paez turned 43 in December. It has been nearly 25 years since he left Mexico, and the thought of having to return—being forced to leave his family—is something he is wholly unprepared to confront. It’s not that he is incapable of doing so; when you experience the things Espino-Paez has experienced, there is little choice but to deal with life’s challenges in a determined way. Rather, it’s that he didn’t think he’d have to. Nineteen years ago, the judge told him this would no longer be a problem—that he had rightfully earned a second chance. Now, it turns out this thing he thought he had resolved long ago as a young man might alter his life forever.
On the evening of November 20, 2014, the night of President Barack Obama’s highly anticipated address on immigration, people gathered inside 100% de Agave on the ground floor of the Beauvallon building on Lincoln Street. The upscale Mexican cantina was the site of a hastily prepared watch party for the speech. The crowd consisted of several dozen prominent members of Denver’s Latino community, immigrant rights advocates, representatives of politicians, and local TV stations looking to produce spots for their late broadcasts. At precisely 6:01 p.m., the president appeared on a large projection screen on the back wall of the restaurant, and with a bit of urging, everyone quieted. “My fellow Americans, tonight, I’d like to talk with you about immigration.”
The president began by stating what anyone who has completed a high school history course surely knows: The United States is a cultural melting pot. “Our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations….” Obama said. “It has shaped our character as a people with limitless possibilities—people not trapped by our past, but able to remake ourselves as we choose.” Then, the president shifted toward more political territory. “But today, our immigration system is broken, and everybody knows it. …And for decades, we haven’t done much about it.”
Obama explained that he was only doing what he was about to do because of the failure of others to act—a thinly veiled reference to the Republican-controlled House of Representatives, which refused to vote on an immigration reform bill in 2013. That year, the so-called Gang of Eight—a bipartisan group of senators that included Colorado’s Michael Bennet—negotiated a bill that would have created a “tough but fair” path to citizenship, a more secure border, an employment verification system, and a process to more easily allow guest workers to gain legal status. The bill passed the Senate with 68 votes. “It wasn’t perfect,” Obama said. “It was a compromise, but it reflected common sense.”
By the time the president neared the crux of his speech, any lingering commotion inside the Denver restaurant had lulled. Obama announced additional resources for border enforcement and a streamlined guest-worker program. Then the centerpiece: Undocumented parents of U.S. citizens who had lived in the country for more than five years and would agree to pay taxes and pass a criminal background check would get a temporary reprieve from deportation. “We’re going to keep focusing enforcement resources on actual threats to our security,” Obama said. “Felons, not families. Criminals, not children. Gang members, not a mother who’s working hard to provide for her kids.” People cheered. One woman yelled, “Now that’s a president I can get behind; thank you for recognizing our humanity!”
In the middle of the crowd that night stood 40-year-old attorney Hans Meyer. Dressed in a slate gray suit, Meyer had undone his top button and loosened the knot of the tie around his neck. He held a mug of beer in his left hand. Meyer felt a sense of vindication listening to the president’s words. He’d spent his whole career working immigration cases and always felt he’d been met with indifference. This moment was cause for celebration. Still, there was a part of him that knew the president’s action was bittersweet for many of his clients, including one particular man from the northern part of the state. Meyer took a sip of his beer.
As Obama approached the end of his prepared remarks, he transitioned to a more philosophical tone. “For all the back and forth of Washington, we have to remember that this debate is about something bigger. It’s about who we are as a country and who we want to be for future generations. Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law? Or are we a nation that gives them a chance to make amends, take responsibility, and give their kids a better future?”
As a young boy in the late ’70s and early ’80s, José Espino-Paez was often aboard a crude fishing boat drifting toward the coastal town of Mazatlán, Mexico. After days at sea, accompanied by little more than the stench of his fellow fishermen and views of the deep blue Pacific, a glimpse of Mazatlán had a way of affecting his spirit: the lighthouse atop the steep, rocky peak at the end of the peninsula; the waves crawling up the sand toward the boardwalk; clusters of boats dotting the sea near the port; the sprawling buildings, which stretched east toward his home in Villa Unión, a small town 15 miles inland. Still, at times, the feelings conjured by this beautiful landscape were lost amid the piercing hunger in his stomach.
He wasn’t even supposed to be on those boats. If his mother had gotten her way, he would have been at school. José would sometimes tell his mother that’s where he was headed, but instead he would wake in the morning on the floor of their house—which was constructed in part from cardboard—and bushwhack his way to the ocean to fish. It’s not that José wanted to lie to his mother. He just thought fishing was a better way to help his family. Often, there was only enough food for a single meal a day—tortillas with salt—and other times, he says, he and his younger brother and six sisters would not eat for almost a week. His mother washed and ironed clothes for other families, but that was not enough to feed eight kids. José and his siblings would gather at the table and look toward their mother. “Mama, tengo hambre. Quiero comer.” I’m hungry. I want to eat.
One day José came home and found his mother alone in a corner, crying from the overwhelming sadness of not being able to provide for her children. So when it came to spending time on those boats—or in the fields picking fruit—instead of sitting behind a desk at school, José thought that if it meant his family could eat, then certainly it justified telling a lie, even to his mother.
José’s father, Juan Espino, had been gone since José was about eight years old. For some of the same reasons José spent weeks at sea, his father had left Villa Unión, making the dangerous journey to the border and illegally crossing into the United States. He landed a job on a ranch and sent what money he could back to his family. José’s feelings toward his father were conflicted. But sometime around the age of 15, José began to think that perhaps he should follow his father’s path. He wanted to help his youngest sister, Consuela, who was by far the brightest in the family. José knew his mother was upset they wouldn’t have enough money to send her to a university. José and another sister secretly began saving what little they could with the idea of eventually paying a coyote to bring them to the United States. Just like his father, José would work and send money home—so they could eat and Consuela could go to college. After three years, though they were scared to do so, they finally told their mother the plan.
How is a mother supposed to take that kind of news? She was angry and confused. But more quickly than one might anticipate, she came to understand what her children were saying—that their departure was necessary. One day, she sat down with José and his sister and told them: Get ready; they’re expecting you in Durango. She had contacted extended family in Durango, Zacatecas, and Ciudad Juarez, Mexico—places for José and his sister to stay on their journey.
The trip from Villa Unión to El Paso, Texas, is about 650 miles, but when you travel with a coyote, you do not walk in a straight line. José’s mother found a friend of a friend to take them, about the best scenario they could have hoped for; strangers are liable to steal your shoes or jacket or wallet, or do something much worse if you are a woman. José and his sister were joined by cousins and a few others, about a half-dozen total. It took the group two weeks to make it to Juarez, which shares a border with El Paso. There, they waited for weeks until the coyote told them the time was right.
It was late in the night, and they could see the border. They were surrounded by gangs, many of which claimed children as members. The instructions were simple: When the coyote yelled for them to run, they were to run and not look back, and so that’s what José and his sister did. They ran through darkness for what felt like an hour. They ran by homes, through fields, under bridges. After they stopped to rest, the coyote bought them a bucket of KFC—their first taste of America. Somewhere near El Paso they met a taxi driver who took them to Las Cruces, New Mexico. They drove back roads with the headlights switched off. From there they continued north to where their father had settled years earlier: Weld County, Colorado.
When it comes to the work of ensuring that the United States criminal justice system is attuned to the rights of immigrants, the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky was a landmark. The Sixth Amendment of the Constitution guarantees the right to effective legal counsel, and the question before the court in this case was whether the constitutional right of a man named José Padilla had been violated when he received erroneous advice from his lawyer.
Padilla, a native of Honduras, had lived as a lawful permanent resident of the United States for 40-plus years and served in the U.S. Armed Forces during the Vietnam War. In 2001, police arrested Padilla at a weigh station on a Kentucky highway after they searched his tractor-trailer and found more than a thousand pounds of marijuana. Padilla said he didn’t know the drugs were there. Though he maintained he was innocent, Padilla took a deal that required he plead guilty because his attorney assured him he “did not have to worry about immigration status since he had been in the country so long.” That advice was catastrophic—even lawful permanent residents can be deported for committing certain crimes, and Padilla’s conviction led to him facing automatic deportation. Padilla said later if he had known the real impact of his guilty plea, he would have taken his chances at trial.
The Supreme Court ruled in favor of Padilla, citing in part the evolution of immigration policy during the previous 90 years. “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation…. The ‘drastic measure’ of deportation or removal…is now virtually inevitable for a vast number of noncitizens convicted of crimes,” Justice John Paul Stevens wrote in the majority opinion. “The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”
Immigrant rights advocates and legal scholars viewed Padilla as groundbreaking. “Our criminal justice system is built on the assumption that defendants are well informed,” says Katharine Speer, a Denver immigration lawyer and consulting attorney for the Mexican consulate in Denver. “Without this protection, the Sixth Amendment right would largely be an illusion for immigrants.” A high-profile lawyer in Washington, D.C., and a University of California, Davis, law professor co-wrote a paper suggesting Padilla may become “the most important right to counsel case since Gideon” (referring to Gideon v. Wainwright, the 1963 ruling that held states must provide a lawyer to criminal defendants who cannot afford one, the foundation of our public defender systems). They also posited that “the ‘Padilla advisory’ may become as familiar a fixture of a criminal case as the Miranda warning.”
The court, however, decided not to apply the decision retroactively, which means if you were an immigrant who received bad advice from an attorney before Padilla, then you were out of luck. That is, unless you lived in a state where similar case law had already been established.
More than two decades before the Padilla decision, the Colorado Supreme Court heard the case of José Borcella Pozo, an “alien legally residing in the U.S.” who had emigrated from Cuba in 1980. Pozo had pleaded guilty to charges of second-degree sexual assault and escape, and seven months later, the U.S. Department of Justice’s Immigration and Naturalization Service threatened to deport him. Had he known the outcome, Pozo would have preferred to test his luck at trial—the same argument Padilla would make 20 years later. On November 9, 1987, Colorado’s highest court found that if defense attorneys are aware of a client’s noncitizen status, they have a responsibility to investigate and advise them of the consequences of a conviction. “Colorado,” says Aurora-based immigration attorney Aaron Hall, “was way ahead of the curve on this.”
But having case law is one thing—ensuring attorneys comply with it is something else altogether. “Padilla brought more light to this, but that doesn’t mean it’s not still an issue,” Speer says. “This is still a problem today—and it was an even bigger problem before.”
When José Espino-Paez crossed the U.S. border in 1990, he ran into a country in which politicians had spent the better part of the previous two decades fighting a war on drugs. President Richard Nixon had declared drug abuse “public enemy number one” in 1971, and Ronald Reagan’s presidency in the ’80s marked the beginning of a dramatic increase in the number of people incarcerated for nonviolent drug offenses—50,000 in 1980 to more than 400,000 by the late 1990s. Espino-Paez also entered a country in which a Democratic Congress and a Republican president had recently passed broad, bipartisan immigration reform. The Immigration Reform and Control Act of 1986 intended to tighten security at the border, made it illegal to knowingly hire anyone without proper status, and offered amnesty to 2.7 million undocumented immigrants already living in the country. Espino-Paez’s father, Juan Espino, was one of those issued a green card as part of the new law, which signified his newfound lawful permanent residency.
Of course, Espino-Paez would not have known much about any of this when he settled in Weld County. What the 18-year-old did recognize about this new place was that there were heaters, and air conditioning, and television—things he had never experienced in Mexico. He also met extended family he had not known before. But it was difficult to appreciate those luxuries knowing his mother and brother and sisters were back in Villa Unión struggling to eat. He began to look for work. The logical place to start was the ranch that had employed his father for years. He met the owner, but the man said he couldn’t hire Espino-Paez because he didn’t have papers. A week later, though, the owner changed his mind. He couldn’t find anyone else to do the work, so he hired Espino-Paez to water the fields, take care of the animals, and drive the tractor.
During those first months in Colorado, Espino-Paez’s uncle noticed that something seemed to be stuck in the back of his nephew’s mind—he seemed distant, worried. His uncle had always been the kind of guy who picked up on things like that. The two spoke about it, and Espino-Paez explained he was concerned about being undocumented. They approached his father about filing a visa application for lawful permanent residency, which would allow Espino-Paez to live in the country indefinitely. (Lawful permanent residents do not have all the same rights as citizens; for instance, they cannot vote.)
Since Espino-Paez was not yet 21, his father had to fill out the paperwork. Juan Espino completed the application, paid the $75 fee, and mailed the papers to the government. He received a reply in the mail dated November 16, 1992, from the Immigration and Naturalization Service. The document said that it “usually takes 30 to 60 days from the date of this receipt notice for us to process this type of application or petition.”
Another government letter, dated December 9, arrived. This one said the petition for José’s visa application had been approved and that it had been forwarded to the Department of State Immigrant Visa Processing Center in Arlington, Virginia. The document explained the Arlington office would “communicate shortly” regarding additional processing steps. No further communication arrived until many years later.
The plan was to make it to the United States, and to Colorado where his father lived, and to work—not necessarily to stay. But plans have a way of changing, and since Espino-Paez had landed a good job on the ranch and things, generally, were going well, his family began to make arrangements to bring his mother and his remaining siblings to Colorado. About two years after Espino-Paez crossed the U.S. border, the rest of his family made the trip from the coastland of Mexico to the Rocky Mountains. Then Colorado began to feel like home.
The year after his family arrived, Espino-Paez turned 21, and like many 21-year-old men, he wanted to go to bars and drink beer and meet women. His father warned him to be smart about all that. Nevertheless, four days after his birthday, a Weld County sheriff stopped Espino-Paez for weaving and arrested him for driving under the influence of alcohol, a misdemeanor. Espino-Paez stayed out of trouble for more than three years. Then, on the night of June 9, 1996, he and his cousins went to a nightclub in a run-down building not far from where he lived.
On any given night, the club played traditional Mexican norteño dance music, and the large Latino population in Weld County would flock to the bar. The floor would be packed, and someone would yell the name of a Mexican town—Chihuahua!—and everyone who had ties to that town would holler into the stale air a sort of high-pitched, rhythmic sound created by slapping their tongues against the roofs of their mouths. Then another town—Zacatecas!—and another chorus of loyalty. It would go on and then sometimes it would lead to a fight—about what in particular, it was unlikely anyone truly knew.
Sometime before midnight on that night in June, Espino-Paez took a break from dancing and went to the restroom. According to court documents, he said he entered the bathroom and found a folded dollar bill. He asked another man if it was his. Moments later, according to a statement from Espino-Paez, a security guard entered the restroom and pointed a gun at his chest and said he was under arrest. Espino-Paez ran for the front door. A second guard caught him outside the bar and the two wrestled to the ground, and the guard eventually snapped handcuffs onto Espino-Paez’s wrists. The guard took the folded dollar bill and placed it on top of a nearby vehicle.
A police officer arrived and found Espino-Paez and the two security guards in the parking lot. One of the guards said he believed the dollar bill contained drugs. The officer field-tested the white powder on the money, and the substance came back positive for cocaine. She placed the bill in a plastic bag and arrested Espino-Paez. He was charged with second-degree assault and possession of a Schedule II controlled substance.
Espino-Paez didn’t have money for a lawyer, so the Office of the Colorado State Public Defender assigned him an attorney, Claudia Brett Goldin. The district attorney representing the state offered Espino-Paez a “deferred judgment,” which required him to plead guilty. He would be placed on probation for a year and have to submit to random drug tests, attend drug classes and therapy sessions, and complete 48 hours of public service. If he stayed out of trouble and complied with the terms of his probation without incident, then a judge would withdraw the plea and his record would be clean. Espino-Paez says his lawyer told him it was a good deal and did not mention any possible ramifications pertaining to his immigration status.
Espino-Paez appeared before a Weld County District Court judge on August 27, 1996, to go over the plea agreement.
“How do you wish to plead, guilty or not guilty?” the judge asked.
“Guilty,” Espino-Paez said.
“Before I accept your plea, I need to make sure you understand the rights advisement I’ve been handed. The first page is the Written Waiver and Guilty Plea signed by you and Ms. Goldin. Did you go over that with her in Spanish?”
Goldin clarified that Espino-Paez had reviewed the plea with an interpreter, and the judge asked: “Do you understand those rights?”
“Do you understand that you’re giving them up by pleading guilty today?”
The judge concluded the hearing by finding that the plea was “freely and intelligently given, supported by a sufficient factual basis.” Three weeks later, on September 17, Espino-Paez appeared in court once more to finalize the probation plan; the judge said, “Good luck to you,” and suspended the case for a year per the terms of the deferred judgment sentence. Thirteen months later Espino-Paez returned to court. A judge dismissed his charge, withdrew the guilty plea, and said it was like the whole thing never happened.
In theory, the underlying principle of a deferred judgment is to give criminal defendants, typically first-time offenders, second chances. In practice, however, that’s not always the case. Even if a defendant successfully completes his probation and his record is expunged, it doesn’t necessarily mean there are no further consequences. “There’s often a misconception that it’s a bigger carrot than it is,” says Mark Evans, a senior deputy state public defender. “Once you’ve entered that guilty plea, it can still get held against you.”
The state Legislature enacted Colorado’s deferred judgment statute in 1975. At that time, prosecutors had three sentencing options at their disposal: incarceration, probation, and a more obscure rule known as “deferred prosecution,” which allowed defendants to enter probation or treatment programs for up to two years before pleading guilty or going to trial. Deferred judgment became the fourth option and introduced a subtle yet significant alternative: Defendants would be required to plead guilty before entering rehab programs.
District attorneys quickly abandoned deferred prosecution in favor of deferred judgment. Prosecutors preferred the new option because it streamlined their processes: If a defendant flunked out of his probation program, the prosecutor wouldn’t have to go back and attempt to try the case six or eight months later because there was already a guilty plea on the books.
Thirteen years after lawmakers enacted Colorado’s deferred judgment statute, a series of federal judicial and political decisions on immigration began to interfere with the goals of the state law. In a 1988 case known as Matter of Ozkok, the federal Board of Immigration Appeals ruled, in part, that if a defendant “entered a plea of guilty”—even if that plea was later withdrawn and the record expunged—it could be considered a conviction and a deportable offense.
Seven years later, in April 1995—16 months before Espino-Paez appeared in Weld County District Court—a Mexico native and lawful permanent resident living in Moffat County, Colorado, challenged the Ozkok definition in court, calling it “improper.” The board ruled against the Colorado man.
The following year, in 1996, federal politicians inflicted a final blow to second-chance sentences, such as Colorado’s deferred judgment, given to noncitizens. That year, a Republican Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which President Bill Clinton signed into law weeks before he was re-elected. Among other things, the new law expanded the class of crimes that lead to deportation, scaled back judges’ authority to exercise discretion in deportation cases, and rewrote the definition of conviction in the Immigration and Nationality Act to largely reflect the existing case law.
For purposes of deportation, the definition of conviction written into federal law now included guilty pleas entered for deferred judgment programs. In essence, the federal government now considered immigrants who might not have technically been convicted of crimes under state law as criminals with conviction records. “That’s a pretty breathtaking definition of conviction,” says Denver attorney Hans Meyer. “It takes away a primary instrument that the state system uses to give people a second bite at the apple.”
IIRAIRA was signed into law on September 30, 1996—34 days after Espino-Paez pleaded guilty to his drug charge. When Congress passed the bill, it applied the new language retroactively—despite, Meyer says, Article I, Section Nine of the U.S. Constitution, which states that no ex post facto law shall be passed—meaning any deferred judgment was now considered a conviction for deportation purposes.
IIRAIRA effectively codified a confusing legal discrepancy that had existed for years in case law; it was now as if the state and federal laws no longer spoke the same language. “It’s treated as a conviction even though you were never convicted,” says Denver immigration attorney David Kolko, who has worked in this field for 22 years. “There is something so fundamentally unfair about that.”
Three years after a judge withdrew Espino-Paez’s guilty plea and expunged his record, he met his wife. He’d found a new place in town to go dancing, and one night he noticed a woman on the dance floor and thought she was beautiful. He asked her to dance, and from that point on, they were together. They eventually married and had the first of their four kids shortly thereafter.
Espino-Paez left his job at the ranch and landed better-paying work at a local roofing company. A few years later, he took a job drilling holes in the nearby fields. During the next decade, the couple had three more children, all U.S. citizens who began attending the local public schools. The youngest was a girl, and Espino-Paez grew particularly fond of his only daughter. When she was old enough to attend school, she got the idea that she didn’t like to go and said she didn’t want to leave her mother. After everything Espino-Paez had been through to give his children the educational opportunities he never had, that broke his heart.
Espino-Paez had continued to wait for his visa petition to become current. Finally, in September 2011—nearly 20 years after his father first filed the paperwork—Espino-Paez was notified that he could apply for lawful permanent residency.
According to court documents, the wait was “due to lengthy backlogs in immigrant visa processing and the fact that Mr. Espino-Paez turned 21 during the pendency of his petition.” (When Espino-Paez became 21 he was no longer considered a child, and his application moved to the adult line, which was much longer.) Espino-Paez paid $2,070 in fees and filed the paperwork. A month later, he got a letter from the Department of Homeland Security that said the government was processing his application. Four months after that, there was another document that seemed to contain encouraging news: The federal government had granted him temporary work authorization.
The next letter was dated May 1, 2012, and the cover sheet contained only one sentence: “Upon consideration, it is ordered that your application for status as a lawful permanent resident be denied for the following reasons.” On the second page, it explained: “On September 17, 1996, you were granted a deferred sentence in Weld County. …Due to this conviction you are inadmissible and your application is hereby denied.”
Espino-Paez didn’t understand. There must have been a mistake. He followed the rules. His record was clean. That’s what the judge said. He hadn’t had any problems since. Sure, he had a few traffic tickets, but didn’t everyone have a few of those? Were they going to deport him? Would he have to leave his children? He called half a dozen lawyers, but he couldn’t afford any of them. Then a friend of his wife’s gave him a card for an attorney named Hans Meyer.
It might as well have been “fate” that was written on the flier Hans Meyer plucked from a signpost in Seattle’s Capitol Hill neighborhood. Meyer grew up in Aurora and went to college at Pacific Lutheran University (PLU) in Tacoma, Washington, where he studied English and global studies. He’d become fascinated with Latin America and began to consider human rights advocates such as Rigoberta Menchú, an indigenous Guatemalan woman who was awarded the Nobel Peace Prize in 1992, among his heroes. Everyone told Meyer that those who were serious about learning Spanish went to Guatemala; those who weren’t went to Costa Rica to surf and walk the beaches with European women. Now here was this flier advertising a Guatemalan language school.
Meyer had never cared much for step-by-step planning. It was no surprise that years after he graduated from PLU in 1996, he packed a bag and bought a plane ticket and went to this school and knocked on the door, and a woman answered who told him he could stay with a family down the road. He bounced around Central America for the next few years learning Spanish and engaging in human rights work. A few years after he moved to Central America, Mexican officials kicked him out of the country for flying in journalists to write stories about human rights abuses by the government.
Meyer eventually returned to metro Denver and found there were communities of Central American people like those he had worked with in Latin America. He got a job as a paralegal so he could use the Spanish he’d learned abroad and eventually enrolled at the University of Denver Sturm College of Law. Four years later, in the spring of 2006, Meyer left campus with a single goal: to ensure the criminal justice system served the rights of immigrants.
That was 19 years after the Colorado Supreme Court ruled that defense attorneys had an obligation to advise noncitizens of the potential ramifications of a conviction, and Meyer says the Office of the Colorado State Public Defender had done little to proactively comply with the ruling. Meyer approached the office about bringing it up to speed. “We had this very important case articulating both the duty and the right to effective assistance of counsel for noncitizens, but we didn’t have the infrastructure—there was no system in place,” Meyer says. “It’s not that there wasn’t a will; it’s just that no one had the resources.”
The office didn’t take much convincing. Meyer took on a full caseload for the public defender’s office while becoming the single in-house immigration expert for more than 300 lawyers, each juggling hundreds of cases a year—15 to 20 percent of which Meyer estimates involved immigrants.
Meyer felt uniquely qualified for the job. He spent most of law school working with immigrants in deportation detention facilities, and what he’d learned was that by that point, most of them had already lost. They needed help long before someone decided to deport them. “Doing immigration work for people in detention is like being a nurse in the morgue,” Meyer says. “The patient is going to live or die before they get to you, and most of the time they’re not going to make it because of a colossally insignificant crime they just pleaded guilty to. I’m going back and trying to un-ring that bell.”
Meyer left the public defender’s office in 2010 and started his own practice. On his way out, he says he tried to articulate the importance of continuing the advisement process he’d created. “The Colorado public defender system is a very strong system—there are great attorneys,” Meyer says. “But the demands are enormous, and it is chronically underfunded for the amount of work it does.”
Senior deputy state public defender Mark Evans says every attorney in the public defender system is trained to ask his or her clients if they are citizens and, if the answer is “no,” to advise them accordingly. “I’m confident in our ability to represent noncitizens,” Evans says. “That’s not to say it’s perfect. Ultimately, criminal law is our focus—we’re thrust into a position where we try to do our best to do both [criminal and immigration law].”
Today, Meyer conducts trainings with judges, attorneys, and law students and is the immigration expert for Colorado’s Alternate Defense Counsel, which handles cases the public defender’s office cannot take because of conflicts of interest. And at his own practice, Meyer has returned to the work of trying to help noncitizens un-ring the bells they might not realize they ever struck.
Espino-Paez first contacted Meyer in the summer of 2012. He went to Meyer’s office on Santa Fe Drive and told him about the letter from the government. Meyer listened to Espino-Paez’s story and then explained what had happened. Four months later, he filed a lawsuit in Weld County District Court. Meyer argued that Espino-Paez’s constitutional right to effective counsel had been violated when his lawyer advised him to plead guilty for a deferred judgment.
Meyer felt there was a clear argument for ineffective assistance of counsel. He says it should have been easy to determine that Espino-Paez was a noncitizen and that the law required his public defender to research whether a deferred judgment had immigration consequences. If his lawyer had done so, Meyer says, she would have found the 1995 Colorado case that clarified that guilty pleas entered for deferred judgments count as convictions for deportation purposes. “There was a case directly on-point on this exact issue when José was charged,” Meyer says. What’s more, at the same time, the political tides in Washington, D.C., were shifting toward codifying the broad definition of conviction in federal law. And Meyer says Espino-Paez knew none of this when he pleaded guilty.
Meyer contended that Espino-Paez should be able to go back in time and withdraw his plea in favor of something that would not require the government to deport him. The district court judge disagreed.
Meyer passed the case along to a colleague, Antony Noble, who specializes in criminal appeals. About a month earlier, Noble had successfully argued a similar case before the state Supreme Court. In Kazadi v. People, Yanick Kazadi, a lawful permanent resident who had emigrated from the Congo, was busted for marijuana possession and took a deferred judgment. Months later, the federal government tried to deport him.v
Noble argued Kazadi should be able to withdraw his plea because his lawyer didn’t tell him what would happen. The Supreme Court agreed, and Kazadi returned to the district court, withdrew his plea, and the case was dismissed. The difference between Kazadi’s case and Espino-Paez’s case was that Kazadi’s deferred judgment was still pending when he filed his suit. In Espino-Paez’s case, the state of Colorado had already withdrawn his plea nearly 20 years earlier. The Colorado Court of Appeals viewed this as precisely the problem. As far as the state was concerned, Espino-Paez’s guilty plea didn’t exist—there was nothing to go back and withdraw. On September 25, 2014, the Court of Appeals ruled 2-1 against Espino-Paez.
Judge Sandra Rothenberg wrote the majority decision. “We are not unsympathetic to defendant’s circumstances. He fully complied with the terms of his deferred judgment, yet he faces deportation from this country because federal immigration law views pleas that are withdrawn after deferment as tantamount to convictions. We also recognize that our holding leaves defendant without a state court remedy.”
In his dissent, Judge Daniel M. Taubman wrote, “In my view, it would be illogical to conclude that a defendant like Kazadi, who had not yet completed his deferred judgment, may move to set aside a guilty plea…for ineffective assistance of counsel, but Espino-Paez may not. …The facts of the present case are even more sympathetic as to the plight of a noncitizen who benefited initially from a deferred judgment than those presented in Kazadi.”
This past December, Noble petitioned the Colorado Supreme Court to hear Espino-Paez’s case. Noble’s best guess is they will know by this spring or summer whether the court will take People v. Espino-Paez.
The Colorado Attorney General’s Office is tasked with arguing the other side of the case. The office also happens to now employ Claudia Brett Goldin, the public defender who represented Espino-Paez in the ’90s. Neither First Assistant Attorney General Goldin—who is part of the office’s revenue unit and is not working on Espino-Paez’s current case—nor any other lawyer in the attorney general’s office would speak on the record because Espino-Paez’s case is still pending. Communications director for the Colorado Attorney General’s Office Carolyn Tyler issued this statement: “Mr. Espino-Paez no longer has a guilty plea or conviction in state court, and the state no longer has authority to prosecute him. Accordingly, as the Court of Appeals held, the relief Mr. Espino-Paez now seeks—withdrawal of his guilty plea—has already been granted, and our state courts do not have jurisdiction to review the matter further. In ruling on this case, the Court of Appeals stated that it was not unsympathetic to the defendant’s circumstances yet lacked jurisdiction to resolve the legal issues at play. This Colorado case illustrates a national issue that only our federal officials can solve.”
Noble says the attorney general’s argument takes a robotic approach to people’s problems. “Everything is backwards,” he says. “The person who has done everything right and successfully completed his deferred judgment gets no remedy.” Noble also says that Espino-Paez’s case is the kind that could have a larger impact. “We know for certain he’s not the only person in this situation.”
During the past decade, according to the Court Services Division of the Colorado Judicial Branch, prosecutors have handed out about 5,000 deferred judgments per year in felony cases and thousands more for misdemeanors and traffic cases. But it is difficult to determine how many of those involve noncitizens. And that’s only part of the picture. The judicial branch doesn’t collect numbers from Denver County Court, and as of 2010, attorney Aaron Hall says Denver’s Immigration Court had 7,600 cases pending, “a significant number” of which were deferred judgments.
Anecdotally, when you ask those who work with immigrant populations, they’ll tell you they see cases like this all the time. Denver attorney Ferdinand Torres has two cases very similar to People v. Espino-Paez pending at the Colorado Court of Appeals. “That’s only two of hundreds of people that I’ve talked to in this situation,” Torres says. “I get a lot of calls.” Hall says he would just be taking a guess, but that “we’re talking about probably thousands.” Katharine Speer, with the Mexican consulate in Denver, says there are “a lot,” maybe “thousands.”
Recently, officials in the Boulder County court system identified the deferred judgment discrepancy between state and federal law as a serious enough problem to take action. Notecards written in Spanish and English warn defendants about the legal catch-22: A plea of guilty, even when accepted for a deferred judgment or deferred sentence is considered a conviction for immigration purposes. Please check with your own attorney before entering a plea.
This conundrum is not unique to Colorado. The Supreme Court of Ohio recently accepted a similar case, State v. Kona. In May 2006, police arrested Issa Kona, a citizen of Palestine and a lawful permanent resident of the United States since 2002, for stealing a battery charger from Home Depot. Kona entered a deferred adjudication program and completed a written admission of guilt required by the county. Kona finished the program, his case was dismissed, and his record was expunged and sealed. Later, Kona applied for citizenship and was advised he would be deported because the admission of guilt form he filled out fell under the federal definition of a conviction. Oral arguments in State v. Kona are scheduled for June.
“This is something we hear about all the time,” says Benita Jain, a managing attorney with the national Immigrant Defense Project. Jain’s colleague, co–executive director Alisa Wellek, says there could be thousands of noncitizens around the country who have accepted some type of deferred adjudication, not realizing it might be a problem in the future.
In the past, Wellek and the Immigrant Defense Project have advocated that Congress change the definition of conviction in the Immigration and Nationality Act to expressly exclude rehabilitative sentences. Now, Wellek says changing the definition is a “longer-term goal.” She says that “with the congressional makeup as it is,” she’s not sure that broad immigration reform is attainable, and that even if a bill is passed, it’s unlikely Congress would alter the conviction definition.
The topic of immigration is so politically contentious that when I asked Wellek which members of Congress were helpful on the issue back in 2013, she declined to name anyone on the record. When I reached out to members of Colorado’s congressional delegation, no one would speak on the record about the immigration consequences of deferred judgment—or even about immigration in general. Republican U.S. Representative Ken Buck, in whose district Espino-Paez lives, and Democratic U.S. Representative Jared Polis each sent pro forma statements. So did Democratic U.S. Senator Michael Bennet, whose Gang of Eight bill that died in the U.S. House of Representatives in 2013 could potentially have addressed this very problem. Instead of sending a statement, a spokesman for Republican U.S. Senator Cory Gardner sent a Web link to a lengthy, wide-ranging interview the senator had given PBS, in which he discusses immigration for about six minutes.
None of these responses provided much in the way of answers or even explicitly acknowledged this discrepancy between state and federal law: how, for almost two decades, a scenario has existed for noncitizens in which it is almost as if states such as Colorado are handing out second-chance packages wrapped in bows to those they feel are deserving, while the federal government unwraps the packages and fills them with time bombs.
The government was set to begin accepting applications next month for the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program Obama announced in November. In February, however, a ruling by a federal judge in Texas blocked the rollout of the president’s plan. The federal government appealed the ruling a week later, downplaying the decision as an “interim step.”
If the program does proceed, Espino-Paez would meet many of the requirements: He is an undocumented parent of a U.S. citizen and has lived in the country for more than five years. But applicants with felony convictions are excluded. Unless Meyer and Noble are successful—even if they win at the Supreme Court, they still have to return to Weld County court to make their argument for ineffective assistance of counsel—Espino-Paez’s deferred judgment will likely disqualify him from receiving the temporary relief offered by Obama, not to mention keeping him from being approved for a green card the government made him wait nearly 20 years to apply for.
Members of the Immigrant Defense Project are advocating the government not disqualify DAPA applicants with expunged convictions, such as Espino-Paez, or at least consider those applicants on a case-by-case basis. But the timing of when the program’s final guidelines will be released is uncertain given the recent legal troubles. “Our last two presidents have admitted [to committing] actions that would make them ineligible for the president’s program,” Meyer says, referring to Obama’s admitted drug use and former President George W. Bush’s alleged use of drugs. “They are responsible enough to be the leaders of the free world; we should be able to apply that same level of nuance to people who have given us every indication that they can be productive members of their communities and successful parents.”
Espino-Paez’s lawyers have advised him not to discuss what happened almost 20 years ago at that nightclub, other than to say that he did what the legal system asked of him. In court documents, Espino-Paez has said he was drinking beer that night but that he “did not use” any illegal drugs. According to the police report, the first security guard “walked into the bathroom and observed two males holding a dollar bill.” The guard says he “observed white powder” on the money and that when he asked the men what they were doing, Espino-Paez “pulled the dollar bill back toward him and ran out the bathroom.” The police report does not mention either security guard wielding a gun.
Meyer and Noble also will not elaborate on the specifics of the incident, citing the pending legal case. “It’s always hard to recreate what actually happened,” Meyer says. “At worst, it’s a person who had a small amount of drugs wrapped up in a dollar bill and made up a story. He got caught and punished and owned that. Getting a deferred judgment was a raw deal. When he first came to me, he said, ‘I was told by a judge and a lawyer that if I do everything I’m supposed to, this conviction will go away,’ and he believed them.”
Noble believes there’s a good chance the Colorado Supreme Court will take the case. He says the courts are often interested in correcting laws that call the integrity of the criminal justice system into question. Meyer is also optimistic. “One of the things in the justice system and the American ethos is the ability for second chances,” Meyer says. “That’s why the criminal justice system made deferred judgment.”
Some states have attempted to address the deferred judgment problem by enacting laws much like Colorado’s old deferred prosecution statute—the idea being that if noncitizens didn’t have to plead guilty up front, they could participate in probation programs without fear of deportation. Two years ago, the Colorado Legislature repealed the old deferred prosecution statute, which was almost never used, and replaced it with something called pretrial diversion, in hopes it would be more attractive to prosecutors. Pretrial diversion is similar to the old statute in many ways, except a prosecutor can now require a written confession from a defendant.
However, the State v. Kona case pending before the Supreme Court of Ohio suggests that even filling out an admission of guilt form might still be a problem for noncitizens. “I would hope that a pretrial diversion would not be considered a conviction for immigration purposes,” says senior deputy state public defender Evans, who helped rewrite the Colorado law two years ago. Evans says the changes were made precisely to help ensure the statute is “used in the proper spirit of making sure that one mistake doesn’t totally ruin people’s lives.”
On January 20, 2015, the night of President Barack Obama’s second-to-last State of the Union address, Espino-Paez had asked his boss for the day off so he could fix the kitchen sink in his home. Brown water had begun to pool in the bathroom sink as well, and there was a hole in the floor, but he only had enough time for one project—taking a day off means he doesn’t get paid—and the kitchen seemed most important.
Two years ago, Espino-Paez went back to working the fields. It has been a good move for him and his family. He was recently promoted to supervisor and now makes more than he’s ever earned. The new job also comes with health and dental benefits, a first for the family. Espino-Paez also likes that the work keeps him busy—that way there’s less time to worry. When life slows, he begins thinking about lawyers and judges and immigration officials placing him in handcuffs in front of his children, and he gets depressed and wants to lie down and sleep through the day. When things move quickly, he’s more able to focus on his goal for the year: buying his family a new house.
That night in mid-January, as the time approaches for the president to speak, Espino-Paez is seated in his living room, dressed in a worn sweatshirt, jeans, and Converse sneakers. He has told his kids you can get these Converse shoes pretty cheap, but they all want expensive high-tops. Espino-Paez’s father sits across from him on the couch, and his little girl is next to her grandfather. The TV on the floor in front of them is turned to Cartoon Network.
Above Juan Espino’s right shoulder, there are about half a dozen drawings taped to the wall. One of these pictures in particular, which his daughter drew in crayon one day at school, often catches Espino-Paez’s eye and reminds him to focus on what’s important. The picture is of a house—a home. Two stories. Pink, with a red roof, a green yard, and a brown fence.
Update 9/11/2015: Colorado Supreme Court agrees to hear José Espino-Paez’s Case.