When do defendants face immigration consequences?
Defendants who are charged with criminal offenses and might face immigration consequences must be given accurate immigration information by their trial counsel before entering a plea.
A conviction can be reversed if it was 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 that is not a citizen of the United States must be advised of potential immigration consequences of a conviction before he or she accepts a plea bargain or enters a plea to the charges. Failure to properly advise a defendant of immigration consequences is a basis to set aside the conviction or withdraw the plea at a later date in the event there are immigration consequences, in particular the commencement of deportation proceedings.
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 prior to entering a plea that a conviction “may have consequences with respect to 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 on the record at the sentencing hearing, “there is a high likelihood that she’ll still be deported. It’s still probably considered an aggravated felony.” What Ms. Rodriguez-Vega wasn’t told was that 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.
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 have her plea set 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.
Criminal Defense Attorneys with a Track-Record of Success
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 a 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.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.