Immigrant on LI seeks overturning of conviction by state's high court

A Honduran man living on Long Island is seeking to have his criminal conviction overturned in a case that could extend rights to other immigrants who pleaded guilty to crimes in New York and, in doing so, unwittingly risked deportation.

The matter, to be argued Nov. 16 before the state Court of Appeals, traces back to Natanael Sagastumeal Varenga's March 2009 guilty plea to second-degree assault in a 2008 altercation in East Farmingdale.

Varenga, 39, holds temporary protected status, allowing him to live and work legally in the United States, but his plea made him a deportation candidate. Immigrants with lawful presence or permanent legal status can be subject to removal if they are guilty of crimes. Varenga's case is pending in immigration court.

Lawyer: Vacate conviction

Phil Solages, Varenga's lawyer, contends his client should be protected under the U.S. Supreme Court's landmark Padilla v. Kentucky ruling. That March 31, 2010, decision says noncitizens should be afforded Sixth Amendment rights in being told of the risk of deportation before they enter a guilty plea.

Solages says Varenga's conviction should be vacated, because he was within the time frame of one year and 30 days for a late appeal when the Supreme Court issued its decision. He says his client was not told of the deportation risk by a previous attorney.

"A conviction is not final until a defendant has exhausted the time to appeal their conviction," said Solages, a criminal law attorney with offices in Elmont and Hauppauge. The case "has statewide implications," Solages said, "and if we are able to provide noncitizen defendants the opportunity to assert their rights, then those individuals will have an opportunity to obtain justice in court."

Varenga -- also known by his birth name, Natanael Sagastume Alvarenga -- pleaded guilty in State Supreme Court in Suffolk County over his arrest for "cutting a man on the face with a knife" during the fight, according to court records.

If Varenga wins, other New York immigrants who pleaded guilty between March 1, 2009, and March 31, 2010, could seek to vacate convictions if their lawyers did not tell them about immigration consequences.

Suffolk DA opposes appeal

Suffolk County District Attorney Thomas Spota's office, which opposes Varenga's appeal, did not comment. In papers filed with the Court of Appeals, his office says "the Padilla decision should not be retroactively applied" in what it says was a closed case.

The prosecutor's brief cites lower court decisions and statutes to say that, at most, the defendant's conviction became final 30 days after sentencing. It also argues that the assertion that Varenga was not informed is not supported. "Defendant stated, through a Spanish-language interpreter, that he had had enough time to talk to his attorney about the plea and that he was satisfied with the way his attorney had represented him," the brief says. "Defendant understood that pleading guilty was the same as going to trial and being convicted after trial."

The Immigrant Defense Project, a Manhattan advocacy nonprofit against unjust deportation policies, filed a brief backing Varenga's case.

The argument raised "only applies for people sentenced during that year, it only applies to immigrant defendants and it only applies if attorneys failed to notify their clients," said Dawn Seibert, the group's staff attorney. "It's not fair for immigrants to not be informed that they are basically agreeing to their own deportation."

Seibert said she knows of "barely a trickle," or a handful of cases, that could be affected by the outcome of Varenga's case.

Peter L. Markowitz, law professor and director of the immigration justice clinic at Cardozo School of Law in Manhattan, said if the court rules in Varenga's favor, "It would be an extremely important decision for a relatively small class of people."

Varenga, of Suffolk who works in furniture delivery, said he wants another chance "to prove that I can do better." He has a 4-year-old daughter and an 8-year-old son, and a wife here, and a daughter in Honduras. "All my life is here," he said in Spanish, "and I have worked to have that dream that everyone wants to have . . . to live in this country."