There are times when a person is arrested and charged with a crime. In some cases they may have actually committed the crime, or it could be that they are completely innocent, wrongfully accused, or were arrested because of some misunderstanding or miscommunication. They want to fight the charges to prove their innocence.
The person hires a criminal attorney, or has a public defender appointed, who urges them to accept a plea deal. (That is where, although they are charged with a more serious crime, they agree to plead “guilty” to a lesser crime.) They are told that if they choose to fight the charges, they might spend time in jail, and if found guilty, they risk being sent away to prison for many years. However, by accepting a plea deal, they can be out on the street right away, without facing the danger of going to prison. Not wanting to take the chance, the person follows the advice of the criminal attorney and pleads guilty, thinking that the matter is now behind them.
But what may not have been properly explained to the person is that by pleading “guilty” to a particular crime, it could be that they are now automatically deportable/removable. This is because under US immigration law, if a person is convicted of, or pleads guilty to, certain criminal offenses, they are considered deportable/removal.
In 2010, the US Supreme Court, in Padilla v. Kentucky, announced a new rule that if the person’s former attorney failed to advise them of the immigration consequences of a guilty plea, (such as it will result in automatic deportation), the person could have a chance at staying in the US, by having the guilty plea withdrawn. This was a tremendous benefit to non-citizens (including green card holders) who may have pled guilty on the advice of an attorney, without ever being informed about the immigration consequences of that guilty plea.
Recently, the US Supreme Court issued another decision on this subject, in which it stated that its ruling in Padilla does not apply retroactively, to cases where there is already a final conviction or guilty plea. This means that if a person pled guilty to a crime before the 2010 Padilla ruling, they would not be able to rely on, or benefit from, its holding.
In that recent case, the person pled guilty to mail fraud in 2004, based on her defrauding an insurance company out of almost $26,000. Under US immigration law, that was considered an “aggravated felony,” subjecting her to mandatory removal. She later applied for US citizenship, at which time her crime was discovered by USCIS, during a background check. She was placed in removal proceedings in 2009. The ruling in Padilla came out in 2010.
She tried to argue that she was never advised by her criminal attorney of the immigration consequences of her guilty plea. Unfortunately, because her guilty plea took place before the 2010 decision in Padilla, the US Supreme Court said she was not able to benefit from that decision, by withdrawing her guilty plea.
I know that many non-citizens (such as green card holders, non-immigrants, etc.) may have been charged with crimes and pled guilty to avoid the risks of trial or jail. They may then travel outside the US, or apply for US citizenship, at which time their past crime is discovered, and they are placed in removal proceedings.
If you, or someone you know, were ever arrested for a crime, I would strongly suggest that you seek the advice of an immigration attorney, along with a criminal attorney. The immigration attorney could properly evaluate the immigration consequences of the crime and the plea deal, to make sure that you will not be pleading guilty to a crime that will have serious immigration consequences.
In addition, if you have already pled guilty to a crime, there may possibly be something that can be done to have the criminal matter reopened, or, if the guilty plea happened after 2010 you could still benefit from Padilla. But don’t just plead guilty right away, and only afterwards inquire about the immigration consequences. You should inquire about the immigration consequences, from an immigration lawyer, before you plead guilty to anything.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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