Court confusion may force Iowa City woman out of country

IOWA CITY - The unthinkable is beginning to enter the thoughts of Alida Rivera and Israel Martinez.

The Iowa City couple, who met and married years ago and now have two young daughters, both immigrated to the United States in 1994 - Rivera, 40, came from Honduras, and Martinez, 35, from El Salvador. Due to perilous conditions in their home nations - specifically earthquakes and hurricanes that rocked and ravaged Central America - Rivera and Martinez both received temporary protected status in the late 1990s.

That standing confers legal status but comes with conditions, including a requirement to renew the status annually. Recipients also could lose the protected status if they're convicted of certain crimes.

Rivera, who has a handful of simple misdemeanors on her record, told The Gazette that she wasn't aware she was at risk of losing her legal status in the United States until three years after she pleaded guilty to two theft convictions that affected her standing.

“She had no idea whatsoever,” her Iowa City-based attorney Rockne Cole said, translating for Rivera, who speaks limited English. “She thought she would have to pay a fine, and nothing else.”

Rockne, on behalf of Rivera, recently filed two applications for post-conviction relief asking a judge to reopen a third-degree theft case from 2001 and a fifth-degree theft case from 2002. Cole argues that Rivera's defense attorney in the first case and the judge involved in the second case failed to inform her about the immigration consequences of a conviction.

Those failures, according to Cole, violated the due process clause of the U.S. Constitution, and Cole pointed to a 2010 Supreme Court decision in a high-profile case in Kentucky that made it a requirement for defense attorneys to tell clients about immigration consequences.

Had Rivera known what a conviction would have meant to her legal status, Cole said, she would have either sought an immigration-safe plea or taken the case to trial.

Should Rivera receive a second shot at negotiating pleas in the theft cases, Cole said, he will argue that she was operating in a diminished capacity based on a recent diagnosis that she has attention deficit hyperactivity disorder and makes irrational decisions.

In limbo

Cole said Rivera's case and it could prove to be an example of what the 2010 Supreme Court decision could mean for anyone in immigration limbo after pleading guilty to crimes without knowing the full consequences.

The decision, labeled Padilla v. Kentucky, requires criminal defense attorneys to advise clients who are not citizens on the immigration implications of a guilty plea. In Cole's motions requesting Rivera's theft convictions be vacated, he argues that “Ms. Rivera made an un-counseled plea.”

In the 2001 case, Rivera was accused of taking $546 worth of clothes from Dillards and Sears, and she pleaded guilty as part of an agreement that the charge would be cleared form her record if she stayed out of trouble. Her defense attorney didn't tell her about immigration implications at the time.

In the 2002 case, Rivera - who was six months pregnant - was accused of taking $120 in maternity clothes from Kohl's. A judge in that case accepted her guilty plea and ordered her to pay a fine without advising her of the right to obtain an attorney and without telling her that the conviction could affect her legal status, according to the motions aiming to vacate the convictions.

Cole said his client is facing an uphill battle as they wait to see whether the Supreme Court's decision is retroactive to 2001 and 2002. In the best case scenario, Cole said, the courts would reopen Rivera's cases and let her to negotiate a different plea.

Cole said that Rivera is facing a deadline to get the theft convictions resolved by Jan. 8, when she has an immigration hearing. With her current convictions, she can't cancel removal proceedings, meaning she could be headed to Honduras.

“I am very afraid and frightened,” Rivera said through Cole. “There is no way I want to go back.”

Rivera and Martinez have 9- and 7-year-old daughters. Both of the girls also have been diagnosed with attention deficit hyperactivity disorder, as has Rivera. and the entire family is being treated by a therapist.

For Martinez, the thought of raising his daughters alone in the United States - while working, paying bills and maintaining a safe and healthy home - is unimaginable.

“If she leaves, I can't handle that,” he said.

His wife would have to take the girls back to Honduras, he said, where gangs threaten to rob, kidnap and kill anyone who has been in the United States. Career criminals there target people coming from the United States because “they think you're rich,” Martinez said.

“This is heaven for me,” he said about Iowa and the opportunities and security it provides for its residents.

The family has been here almost 18 years - Rivera working at restaurants, Martinez employed at Whirlpool and the girls enrolled at Grant Wood Elementary School. At the girls' young ages, they haven't been able to fully process the idea of moving or losing their mother, Martinez said.

“They don't get the implications,” Cole said on behalf of his clients.

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