Balloon Boy’s Mother & Immigration Law
What does Immigration Law have to do with “Balloon Boy?,” some of you may be asking.
Who is “Balloon Boy?,” others are asking.
Balloon Boy references the hoax that occurred on October 15, 2009, in Fort Colline, Colorado, when the parents of a six-year-old boy, Falcon Heene, claimed the boy floated away in a homemade balloon. At the time, it was reported that the boy was traveling in the balloon at altitudes reaching 7,000 feet (2,100 m). Falcon was nicknamed “Balloon Boy” by the media following the story.
After hours in a flight that coveved more than 50 miles across three counties, the balloon landed about 12 miles (19 km) northeast of Denver International Airport. Authorities closed down the Denver airport, and sent several National Guard helicopters and local police in pursuit. After the balloon landed and the boy was found not to be inside it, authorities began a manhunt of the entire area. Their fear was that he had fallen from the balloon while in flight. Later that afternoon, the boy was reported to have been hiding at his house the entire time.
Eventually, it was discovered that the incident was a hoax and publicity stunt staged by the boy’s father, Richard Heene. On October 18, 2009, the local sheriff decided that the parents would likely face several felony charges. The sheriff also expressed his intent to recover the more than $62,000 spent in the search and rescue effort.
Immigration Law Impacted the Guilty Plea.
On November 12, 2009, an attorney for both parents announced that they intended to plead guilty to charges filed against them. In exchange, the prosecutor would recommend probation. The attorney’s statement said that the threat of deportation of Balloon Boy’s mother, Mayumi Heene, who is a Japanese citizen, was a factor in the plea negotiations. On November 13, Richard Heene pleaded guilty to a felony charge of attempting to influence a public servant. The mother, Mayumi Heene, did not appear with him, and will face a misdemeanor charge of false reporting to authorities. Another hearing in the case is scheduled for mid-December.
What is significant about the case of Balloon Boy from an immigration law perspective is the fact that criminal convictions can impact a person’s immigration status. In the case of Mayumi Heene, she could have been subject to mandatory deportation, had she been tried and convicted of a major felony. In her case and the case of many other immigrants, it is often necessary to prevent deportation by pleading to a lesser crime as a strategy to reduce the chances of being tried and convicted of a more serious crime. Often, this is the case where an innocent immigrant lacks the funds necessary to present an adequate defense. An immigrant facing a felony charges should weigh the risks of a felony conviction and deportation against the odds of gaining an acquital.
Criminal Defense Attorneys Need to Consult With Immigration Counsel
Criminal defense attorneys often fail to consider or properly weigh the impact a criminal conviction can have on an immigrant’s immigration status. The extent to which a criminal attorney should consider the impact of a client’s immigration status is currently before the United States Supreme Court. On February 23, 2009, the Supreme Court granted certiorari in Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted, 2009 U.S. LEXIS 1453 (U.S. Feb. 23, 2009) (No. 08-651). The issue in the case is whether criminal defense counsel must inform a client of the immigration consequences of a plea and if not, whether counsel’s gross misadvice about the consequences is a ground for setting aside a plea. Specifically, the Court will address:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the Immigration & Nationality Act, is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are “collateral”, whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
The Kentucky Supreme Court’s position on whether the petitioner should be allowed to seek post-conviction relief represents the minority view. The majority of state and federal courts that have ruled on the issue have held that misadvice can be ineffective assistance of counsel, even in jurisdictions where there is no affirmative duty to advise defendants of the immigration consequences of a plea.
The Court heard oral arguments on October 13, 2009.
