When do defendants face immigration consequences?

Defendants charged with criminal offenses and facing immigration consequences must be given accurate immigration information by their trial counsel before entering a plea.

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A conviction can be reversed if based on a plea entered by a non-U.S. citizen who was not advised of potential immigration consequences.

Under Padilla v. Kentucky, a defendant not a citizen of the United States must be advised of the potential immigration consequences of a conviction before they accept a plea bargain or enter a plea to the charges. Failure to properly advise a defendant of immigration consequences is a basis for setting aside the conviction or withdrawing the plea later if there are immigration consequences, particularly the commencement of deportation proceedings. Put simply, defendants who are not citizens of the United States must be advised that they could face immigration consequences if they plead guilty or no contest to a felony or misdemeanor.

In a new case, the line was drawn even more clearly by the 9th Circuit. In the case of United States v. Rodriguez-Vega (9th Cir. Aug. 14, 2015), the defendant was advised by the trial court before entering a plea that a conviction “may have consequences concerning her immigration status” and that “potentially you could be deported or removed, perhaps.” Hearing these warnings, the defendant pleads guilty to a misdemeanor, transportation of an illegal alien. Additionally, her attorney said at the sentencing hearing that “there is a high likelihood that she’ll still be deported. It’s still probably considered an aggravated felony.” Ms. Rodriguez-Vega wasn’t told that transportation of an illegal alien is an “aggravated felony” under INA §274(a). Lawful permanent residents (LPRs ) with aggravated felonies are not eligible for cancellation of removal, the discretionary waiver otherwise available to LPRs with crimes, and thus face almost certain deportation.

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A Lawyer’s Failure to Advise a Client of Potential Immigration Consequences is Legally Ineffective

As a result of the conviction, deportation proceedings commenced against the defendant, and she filed a motion to set her plea aside according to a §2255 petition. In response to her motion, her prior counsel testified, “I explained to Ms. Rodriguez that there was a potential to be deported based on her immigration status. I explained to Ms. Rodriguez that … I believed she had a better chance with immigration with a misdemeanor than a felony.”

The court ruled attorneys representing defendants facing immigration consequences and the trial court judges must disclose potential deportation consequences, and the information provided must be accurate. If deportation is “practically inevitable,” it is not enough to say that the conviction “may” result in deportation. The court found that Ms. Rodriguez-Vega’s lawyer was ineffective and reversed her conviction.

Crimes that Can Trigger Deportation and Other Immigration Consequences

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If you or a loved one is a lawful permanent resident (green card holder) or in the United States on a Visa and charged with a felony or a misdemeanor in federal, state, or local district court, you need a top defense lawyer who has extensive experience in handling criminal matters with potential immigration consequences. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has the experience, knowledge, and reputation necessary to get exceptional results. The firm’s lawyers have a track record of achieving resolutions that do not impact a client’s immigration status or require jail time.

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