By Gregory Boop and Elena Lougovskaia
“My name is Emil Jaroszyk. I came to the United States with my family in 1951 as a lawful permanent resident. My entire family settled in Canton, Ohio, upon arrival in the U.S.”
This was the beginning of an affidavit our office prepared on behalf of Emil Jaroszyk in an effort to prevent his removal, or deportation, from the United States in 2012. The affidavit goes on to describe a full life in Ohio: marriage, children, work, grandchildren and plans for retirement. Emil’s story is representative of the real-world effect of vacillating U.S. immigration policy.
Close to retirement, Emil sought information from the Social Security Administration concerning earned benefits. This is where his legal odyssey began. Jaroszyk is not a citizen of the United States as his mother and step-father—through oversight or simply not understanding the law—had never taken steps for Emil to become naturalized.
Many retirees have discovered that they are not U.S. citizens or presumed that, because of the length of time in the United States or some other reason, they have acquired citizenship. One retiree had served two tours in the Vietnam conflict and had been brevetted an officer, only to find—at retirement—he had never been naturalized. This is, and will be, a continuing problem as the number of retirees from the post-World War II era increases by 10,000 per day. By 2030, 18 percent of the population will be 65 or older.1
The question of why some of these retirees are finding they are not U.S. citizens, or why some are aware of the issue but have never taken steps to address it, is complex. The answer involves a mixture of history, politics, religion, economics and U.S. immigration law at the end of World War II.
After World War II, millions of persons were displaced in Eastern Europe. Originally, camps were set up to resettle these populations. These camps were closed in 1947. The U.S. Congress passed the Displaced Persons Act in 1948.2 President Truman signed the law but stated its “bad points” were numerous and “form[ed] a pattern of discrimination and intolerance wholly inconsistent with the American sense of justice.”3 While allowing the issuance of 200,000 visas for two years to displaced persons, the law set artificial barriers to admission for some groups based on arbitrary deadlines. This was followed by the 1952 Immigration and Nationality Act which restricted immigration.4 In 1953, the Refugee Relief Act added additional visa opportunities. Thus, the period immediately following World War II was one of vacillating U.S. immigration policy at once expansive and welcoming and at the same time “hampered and stultified” by restrictive and often racist reactionary policies.5
Europe at that time was not an organized mass of humanity calmly applying for entrance visas. The situation on the ground was managed by charities under the auspices of the Inter-national Refugee Organization. These non-governmental groups were more concerned with feeding, clothing, housing and resettling displaced persons than following an arguably discriminatory immigration law.
From the end of the war in May 1945 to 1954, in addition to regular immigration, displaced person (DP) immigration took place in primar-ily large cities throughout the United States. Aided by local churches and synagogues, these immigrants came under a variety of immigra-tion laws that must have been overwhelming to an arrival fleeing the horror of World War II. These DPs were followed by selective refugee waves throughout the Cold War.
In an environment of arbitrary legal policy, most displaced persons chose to keep their heads down, work hard and feed, clothe and educate their children. Their children are now our retirees. There are hundreds of “Emils” and their families. We never questioned whether any of our friends’ fathers or mothers who went to our local churches were citizens—of course they were. After applying for Social Security, Emil found that his lawful permanent resident card (“green card”) was out of date and that he needed to be issued a new one—a mere formality and a mat-ter of simple paperwork. That is when Halloween 1971 came back to haunt Emil Jaroszyk.
“I grew up with four siblings, all of whom are still alive and all U.S. citizens. My mother stayed at home and took care of the kids. Our childhood was hard. Money was tight, and I worked since I was eight years old.”
South of Canton, in rural farmland, on Oct. 30, 1971, a prosperous farmer and his wife—Ukrainian immigrants, as well—were enjoying the evening in their home. Two masked perpetrators broke into their house. The perpetrators beat the farmers. The husband was beaten so badly it was reported his eye came out of its socket. The assailants demanded cash and seemed to know the farmers kept cash on hand. Neither farmer spoke English as their primary language. Neither could identify the perpetrators immediately (although one suggested the assailant was bearded). Later, at the hospital and through an interpreter, they claimed to “know” or have “heard” that Emil was one of the assailants.
“I was at work when police arrived and arrested me, charging me with armed robbery. I was told that a farm was robbed on Halloween. From the beginning, my lawyer said this was an “open-shut” case and to take it to trial. I had four witnesses to offer an alibi. My lawyer convinced me to waive a jury trial and to try the case to the judge. Despite four separate witnesses who offered an alibi, the judge convicted me of a lesser included offense. I was sentenced to 1 to 25 years in prison and released after serving four months and placed on shock probation. I successfully completed shock probation. I have always denied involvement in the crime.”
Emil served four months on the robbery conviction in 1974. Since 1974, Emil has raised his children. He has worked at the same local plant since he was 18. He has no criminal record apart from the 1971 robbery conviction.
Shortly after receiving his new lawful permanent resident card, Emil received a letter from Immigration and Customs Enforcement to “discuss [his] immigration status in the U.S.” During the meeting, the immigration officer handed him a piece of paper charging him with removal. Emil was being placed in removal and would be deported back to Germany because of his 1971 conviction.
Pursuant to Section 237(a)(A)(iii) of the Im¬migration and Nationality Act, a noncitizen who has been convicted of an aggravated felony is removable from the United States. A crime of violence, as defined in section 16 of Title 18, U.S. Code, for which a term of imprisonment ordered is at least one year is considered an aggravated felony.6 The fact that Emil’s sentence was reduced to shock probation mattered not for purposes of this law. Emil was charged with removal from the United States under these definitions.
To make matters worse, the grounds of de¬portation for aggravated felony convictions were created in 1988 and expanded in 1990, over 16 years after Emil’s conviction of robbery.7 These grounds apply retroactively to individuals who were convicted prior to the enactment of the law.8
Prior to the Immigration Act of 1990, state and federal judges were able to make recom¬mendations against deportation for indi¬viduals who were convicted of crimes that may make them deportable, a procedure known as Judicial Recommendation Against Deportation (JRAD), usually addressed during sentencing. JRAD was never addressed or discussed with Emil at the time of his sentencing, and the procedure was eliminated in 1990 as part of the Immigration Reform Act of 1990.
Whether Emil would have been eligible for discretionary relief from deportation in immigration court was far from certain and depended on a long line of conflicting cases from different circuits. The only sure way to end Emil’s deportation was to defeat the underlying conviction on the merits or to apply for a pardon. According to The Columbus Dispatch, only 5 percent of pardon requests are actually granted by the governor.9 With the immigration court hearing scheduled only a few months into the future, attempting to defeat the 40-year-old conviction was perhaps the only realistic option at the time.
The Jaroszyks were stunned by the news that their father, brother, uncle and grandfather was facing permanent removal from the United States. Having counseled attorneys, they were losing hope. Some attorneys sug¬gested that the family did not have many options; others accused Emil of “lying” about his participation in the crime.
Attorney Elena Lougovskaia came to the United States as an immigrant at age 16. She speaks fluent Russian and a smattering of Ukrainian. Perhaps because of the cultural connection, the Jaroszyks came to our office. As a matter of first impression, vacating the conviction seemed an insurmountable task due largely to the age of the case and the logistical and procedural obstacles involved in vacating a conviction that resulted from a trial.
Based on the testimony of the two victims through an interpreter, Judge Perkins of Carroll County, after a bench trial, sentenced Emil to 1 to 25 years in prison. There is an appeal by his attorney, but a few years later Emil is sentenced to prison. He believes he will be there until 1999. But, just four months into his sentence, he is granted "shock probation” by Judge Perkins. The reasons for this reversal are never explained to Emil. His attorney never informs him (probably because he did not know) of the potential collateral deportation consequences of his conviction, which technically still stands. This is a bad Halloween trick best forgotten. Time goes on. Decades later, the farmers pass away of natural causes. Police investigators retire. A new judge comes to the bench. Very few people remember that horrible attack on Halloween 1971.
Overturning a conviction and seeking a new trial might be an option under Padilla v. Kentucky.10 In Padilla, the U.S. Supreme Court held that criminal defense counsel must advise their clients of the immigration consequences of a criminal conviction and to fail to do so violates the Sixth Amendment right to legal counsel. However, the U.S. Supreme Court has recently held that its holding in Padilla is not retroactive. In effect, it only applies to convictions occurring after the Padilla decision was rendered.11 Further, Padilla deals with pleas rather than convictions resulting from jury or bench trials. Finally, the post-conviction relief under R.C. 2953.21 imposes strict time limitations on bringing motions to vacate convictions.
Based on the legal and practical limitations outlined above, we agreed that rather than blindly filing a motion on a 40-year-old case in a county where we are not well-known, we were going to approach the county prosecutor first, and ask for a meeting to discuss the case and issues. We were going to determine if the prosecutor would consider a change of plea or some other alternative.
In retrospect, our belief that the prosecutor’s office would pay attention to our letter was a bit naïve and, in any case, it was never answered. Perhaps it was the best thing that could have happened for Emil as now there was little other choice than to file a motion with the court. In our initial motion to vacate, we argued that Emil was deprived of effective assistance of counsel because the potential consequences of his deportation were never discussed with him. Therefore, whatever options were available to Emil when his case was pending (whether a plea deal, JRAD, or other relief) was effectively eliminated by the absence of any discussion of deportation consequences. We relied partially on Padilla and a body of case law dealing with effective assistance of counsel.12
After traveling to Carroll County and reviewing the old court file, one thing stuck out. Why did the judge who just sentenced him to 25 years suddenly change heart and release Emil after only four months in prison? Looking at the old records and what was remaining of the court transcript, it appeared that the sheriff had met with the judge on the case shortly before the shock release. Little did we know at that time that the events leading up to that meeting, and the meeting itself, were crucial not only to cutting short Emil’s lengthy sentence but also to later vacating the conviction on the grounds of newly discovered evidence.
It is 1974. Deputy Offenberger and Sheriff Yeager meet with Judge Perkins. The sheriff tells the judge that further investigation calls into question the guilt of Emil Jaroszyk. Two Ukrainian men who live in the community and have worked at the farm are rumored to have committed the crime.
One drives a new car, the other was seen flashing around large sums of cash. One of the suspects turns out to be the son of the interpreter present at the hospital with the victims when the victims first implicate Emil as one of the robbers. The same suspect also visits the victims at the hospital and names Emil as one of the robbery suspects. Shortly after his visit, the victims become certain it was Emil who robbed them, although they still don’t know who the second suspect is. After Deputy Offenberger confronts one of the suspects, he becomes convinced that Emil did not commit the crime. The deputy and sheriff approach the judge with this information.
Shortly after this meeting, shock probation is granted to Jaroszyk.
Deputy Offenberger becomes Sheriff Offenberger, and Sheriff Offenberger becomes retired Sheriff Offenberger who briefly serves as Emil’s probation officer in this small town—the same probation officer Emil later recalled as one who never believed Emil was guilty.
After a meeting with our office, retired Sheriff Offenberger recalled these events in a sworn affidavit, which served as a basis for a motion for a new trial based on newly discovered evidence, under Rule 33 of the Ohio Rules of Criminal Procedure. In addition to ineffective assistance of counsel, we argued that the new evidence warranted a new trial. The current judge granted a hearing on the new trial motion.
On Jan. 15, 2013, the hearing on the new trial motion took place in Carroll County. Retired Sheriff Offenberger testified about the events that occurred more than 40 years ago. At the time, it seemed like the perfect solution releasing Emil on shock probation. But, in emotional testimony, Offenberger acknowledged “justice” was not done. Of the two potential suspects, one died violently a few years after the 1971 Halloween attack and the other simply disappeared.
Ultimately, the Court granted a new trial. In a 10-page opinion, Judge Dominick E. Olivito, Jr., reflected on the entirety of the case: “The 40-year-old record in this case is the backdrop for the current drama now occur-ring 42 years later wherein the Defendant, having once having had an injustice imper¬fectly corrected, now suffers the catastrophic emergence of the additional punishment for his 1971 felony conviction, the threat¬ened and very reality of deportation.” The judge was persuaded that his predecessor’s drastic action of vacating a 25-year prison sentence and granting shock probation after the defendant served only four months in prison was an attempt to do justice without exceeding the court’s authority or discretion. It appeared to the court that “Judge Perkins determined that doubt had been cast on the credibility of the testimony of one of the State’s eye witnesses who he had relied upon to convict the Defendant.”
The Court also concluded that Jaroszyk received ineffective assistance of counsel because he was never advised of the deporta¬tion consequences of his conviction or the advisability of filing a motion for a new trial in 1974, when the new evidence came to light about the defendant’s innocence.
After the trial court granted the motion for a new trial, and having contemplated the testimony at the hearing, the state dismissed the charges against Jaroszyk. Emil was no longer a convicted felon. Immigration and Customs Enforcement agreed to dismiss the deportation case.
Jaroszyk’s situation is not unique. As each wave of displaced persons retires and relies on the Medicaid and Social Security benefits they have, those immigrants come under scrutiny of the federal government. Defects in immigration status and decades-old convictions come to light and can result in disastrous consequences for the immigrant and family.
Although the U.S. Supreme Court did not extend the application of Padilla retroactively, counsel should consider challenging old convictions on the basis of ineffective assistance of counsel for other reasons related to immigration consequences. Counsel should examine the trial court’s file with a critical eye, being mindful of potential substantive challenges to the conviction.
Deportation is a real, measurable and final consequence of a conviction akin to a life sentence in prison. To that extent, some form of discretion should be left to the local and state judges to determine, on a case-by-case basis, whether a defendant should suffer such immediate and drastic consequences. Such discretion had been a part of U.S. immigration policy for nearly 80 years, and its absence hurts families and wastes resources. Judicial Recommendation Against Deportation should be revived as part of the new immigration reform.
Gregory Boop is a founding and managing member of Lougovskaia Boop, LLC in Cleveland, Ohio. Greg has been an Ohio lawyer since 1997. His practice focuses on litigation, criminal law, and business matters.
Elena Lougovskaia is a founding and managing member of Lougovskaia Boop, LLC in Cleveland. Elena has been an Ohio attorney since 2000. Originally from the former Soviet Union, Elena is an immigrant. Her practice focuses on litigation, immigra¬tion, criminal law, and, increasingly, on “crimigration” cases.
1 “Baby Boomers Approach 65—Glumly,” by D’Vera Cohn and Paul Taylor, Dec. 20, 2010, http://www.pewsocialtrends.org/2010/12/20/baby-boomers-approach-65-glumly/.
2 1948 Displaced Persons Act, S. 224; Pub.L. 80-774; 62 Stat. 1009.
3 Harry S. Truman: “Statement by the President Upon Signing the Displaced Persons Act.” June 25, 1948.
4 1952 Immigration and Nationality Act, Pub.L. 82–414, 66 Stat. 163.
5 Harry S. Truman: “Veto of Bill To Revise the Laws Relating to Immigration, Naturalization, and Nationality,” June 25, 1952.
6 18 U.S.C. §16.
7 See Omnibus Anti-Drug Abuse Act of 1988, PL 100-690, Title VII, subtitle J; 102 Stat. 4181 (Nov. 18, 1988); and Immigration Act of 1990, PL 101-649, 104 Stat. 4978 (Nov. 29, 1990).
8 Matter of Lettman, 22 I&N Dec. 365 (BIA 1999), affirmed in Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000).
9 The Columbus Dispatch, “Pardon from Kasich is Rare,” (May 19, 2012), available at http://www.dispatch.com/content/stories/lo¬cal/2012/05/19/pardon-from-kasich-is-rare.html (accessed Oct. 28, 2013).
10 Padilla v. Commonwealth of Kentucky, 599 U.S. 356 (2010).
11 Chaidez v. United States, 133 S.Ct. 1103 (2013).
12 See Strickland v. Washington (1984), 466 U.S. 668 (extending the right to the effective assistance of counsel to sentencing proceedings), Wiggins v. Smith (2003), 539 U.S. 510 (post-trial motions, appeals, and sentencing), Roe v. Flores-Ortega (2000), 528 U.S. 470 (advisability of an appeal), as well as U.S. v. Castro, 26 F.3d 557 (CA 5, 1994) and Janvier v. U.S., 793 F.2d 449 (CA 2, 1986) (duty to advise regarding JRAD at the sentencing phase of proceedings).