November 11, 2021

Veterans Rights Activist Returns to U.S. Legally Nearly 20 Years After Deportation

A veterans rights activist and father of an active-duty U.S. military member crossed the border from Mexico into California on Veterans Day, November 11, reuniting with his family after a legal battle that lasted nearly two decades.

Robert Vivar, director of the Unified U.S. Deported Veterans Resource Center, returned to San Diego after crossing the San Ysidro border. His re-entry follows a victory on his behalf by prominent law firm Munger, Tolles & Olson before the California Supreme Court earlier this year.

“This is a great day for Robert and a great day for our system of justice,” said Joseph Lee, one of Vivar’s attorneys and a partner at Munger, Tolles & Olson. “Robert never lost hope, and we are very proud to have helped ensure that the rule of law prevailed at last.”

In 2002, Vivar entered a guilty plea and his then-counsel did not properly advise him that immigration consequences of that plea would result in his deportation to Mexico, a country he left at age six. 

Vivar spent years unsuccessfully fighting to undo this result in the courts until the California Legislature enacted a new law, Penal Code section 1473.7, permitting non-citizens to challenge old, unlawful convictions based on guilty pleas with unanticipated immigration consequences. Represented by Munger Tolles, Vivar filed a motion to vacate his 2002 conviction under this statute, arguing that he received ineffective assistance of counsel. The trial court denied Vivar’s motion and the Court of Appeal affirmed, concluding that while prior counsel had failed to offer Vivar competent advice about the immigration consequences, Vivar failed to demonstrate any prejudice from the error.

The California Supreme Court granted review and, in an precedent-setting victory that will affect all non-citizen criminal defendants in California facing immigration risk, the state’s highest court reversed the lower court’s ruling. Finding that Vivar was prejudiced by his counsel’s error, the Court instructed the lower court to vacate Vivar’s conviction. The state Supreme Court’s opinion clarifies key points relating to motions to vacate criminal convictions by non-citizen defendants based on ineffective assistance of counsel, and the appellate standard of review applicable to those motions. A group of organizations and individuals weighed in to encourage the high court to rule in Vivar’s favor, including ACLU, the Immigrant Resource Legal Center, and a group of former district attorneys and public defenders.

Vivar has been living in Tijuana, where he is co-director of Unified U.S. Deported Veterans, which is located just a few yards from the Ped West International Border crossing and deportation area, and serves as the frontline of interception for U.S. military veterans who are deported. The organization helps them integrate into the community as productive residents while exploring all legal options to return legally to the U.S.

Vivar is also the Mexico coordinator of Military Families Speak Out. His son is in the California National Guard and his grandson is an active duty Marine. 

The Munger Tolles team that represented Vivar before the California Supreme Court includes Joseph Lee, Dane Shikman, and David Freenock, with support from Ben Horwich

Dane Shikman, who argued the case and led the briefing in the California Supreme Court, has stated: “Robert’s return to his family after years in exile is a testament to the tireless efforts of public officials, immigrant and veteran rights organizations, and dedicated lawyers at our firm who have fought for him along the way. But the only reason these groups have assembled for him is because he has been singularly committed to justice for immigrants and veterans, and through his national leadership and the force of his spirit, he has built a loyal coalition of supporters who are finally able to bring him and his family the justice that he has brought to so many others while stranded away from home. Robert, it has been a long time coming my friend, but welcome home.” 

Assemblywoman Lorena Gonzalez commented: “Today, we are bringing home a deported veterans rights advocate and reuniting him with his family at last. I am overjoyed to hear that Robert will finally be able to return home to the country he calls home, now that his conviction has been vacated by the CA Supreme Court. The path to this decision was paved by our Assembly Bill 813, which provides a means for people to challenge convictions that lead to inappropriate deportations, ripping them away from their loved ones.”

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About Munger, Tolles & Olson LLP:

Munger, Tolles & Olson is one of the foremost contributors to the efforts by legal communities in Los Angeles, San Francisco and Washington D.C. to fill the advocacy gap for members of vulnerable populations who are seeking immigration relief.