(Mt. Clemens, MI) An Iraqi man who is mentally disabled and residing in a Macomb County group home will not be allowed to withdraw his 2005 plea to sexual misconduct, setting the stage for his possible deportation to Iraq.
Judge Edward Servitto of Macomb County Circuit Court ruled Monday, Feb. 6th that the Iraqi man – who is here illegally but was not facing deportation because he was considered “under amnesty as a refugee” until he committed his criminal offense - could not take advantage of a US Supreme court ruling in 2010 in which a conviction was overturned because a defendant’s attorney failed to inform him that the guilty plea likely would get him deported.
In Michigan, as in many states, a conviction of most felonies - and some serious misdemeanors - means automatic deportation.
The ruling means Muwafak Zaya, 40, could be booted back to Iraq very soon, although his attorneys said they will appeal to the state Court of Appeals or ask Servitto for reconsideration.
Zaya’s brother and guardian, Mazin Abro of Sterling Heights, said if Zaya is forced to return to Iraq, "He would just wander the streets, maybe get kidnapped, or do anything for (to) him. They don’t have any mental institutes or anything like that.”
Zaya, while residing with his brother, more than six years ago pleaded guilty to fourth-degree criminal sexual conduct in 37th District Court in Warren for sexually touching a female. A high-court misdemeanor, punishable by up to two years in prison, means automatic deportation.
The precise legal issue before Judge Servitto was whether or not to retroactively – or “backwards in time” – apply the decision of Padilla v Kentucky, a 2010 case in which the Supreme Court said that defendants facing deportation have to be informed of the possible repercussions of their plea under the Sixth Amendment . “I believe there has not been a violation” of his Sixth Amendment right to due process, Servitto said from the bench.
Lawyers for Zaya have been trying to get his conviction erased and have him declared mentally unsound.
Abro said his brother committed the offenses while living with Abro and wandering away from the home. Zaya is now under around-the-clock watch, he said.
The conviction, because it is a high-court misdemeanor, also prevents Zaya from becoming a U.S. citizen.
The Michigan Supreme Court is considering passing a court rule requiring lawyers to inform clients of the effect of a guilty plea on their citizenship. Meantime, most judges in all of the Macomb County courts have already decided to read such a rule directly to defendants standing in front of them any time they take a guilty plea, just to be safe, according to the Macomb County Bar Association.
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