Dealing with Criminal Convictions that Have Immigration Consequences
By Anish Vashistha
Los Angeles , CA
Last week, the United States Supreme Court decided that criminal-defense attorneys are obligated to advise their non-citizen clients of the immigration consequences of accepting a plea bargain. The Court concluded that the Sixth Amendment of the United States Constitution is violated not only when a criminal-defense attorney affirmatively misadvises a non-citizen client, i.e. responds incorrectly to a question by the non-citizen client, about the negative immigration consequences of accepting a guilty or no-contest plea to a criminal charge, but also when a criminal-defense attorney fails to notify on his own initiative a non-citizen client of such consequences.
The case concerned a Kentucky man who had lived in the United States for several years. While in criminal proceedings in Kentucky, the man was offered a plea deal by the prosecution. For many individuals in criminal proceedings throughout the United States, a plea deal is alluring because the individual, whether truly guilty or not, can put the embarrassing criminal case behind him/her quickly and inexpensively and move on with the rest of his/her life while only having to serve little or no actual time in jail or prison.
Prior to accepting the plea deal, the Kentucky man was told incorrectly by his criminal-defense attorney that he would not suffer any immigration consequences of accepting the plea because he had been living in the United States for so many years.
Unfortunately and like the experience of many non-citizen criminal defendants, the Kentucky man’s plea deal resulted in him being removable from the United States, but he only learned of such a consequence after accepting the plea deal and being convicted by the State of Kentucky. Upon learning of the negative immigration consequences of his plea, the man went back to the Kentucky court seeking relief. Finding no such relief before the Kentucky trial, appellate, and supreme courts, the man petitioned the United States Supreme Court, which agreed with him that his Constitutional right to effective assistance of counsel was violated.
Although the Court’s decision places more of a burden on criminal-defense attorneys to learn the immigration consequences of criminal convictions to the extent that they can advise their non-citizen clients accurately, it was a necessary resolution to a problem that has existed for several decades and that has only been exacerbated in the last thirteen years during which Congress passed multiple restrictive and unforgiving immigration laws.
The Court’s decision potentially benefits any non-citizen who, because of one of more criminal convictions, has suffered or will likely suffer immigration consequences such as being: detained by immigration officials, placed in removal proceedings, ordered removed, deported to their home country, or even simply denied an immigration benefit such as a Green Card or United States citizenship. Pakistani nationals who feel that they have been similarly misadvised by their criminal-defense attorneys should seek legal counsel from an experienced immigration attorney to determine whether the recent decision can benefit them in legally clearing their criminal record of convictions that have devastating immigration consequences.
(The author, Anish Vashistha, is a licensed attorney with a nationwide immigration-law practice. He is a graduate from Georgetown University Law Center and Georgetown University’s School of Foreign Service. He has helped several Pakistani nationals obtain or maintain legal status in the United States. He may be contacted toll-free at 1 (866) 433-7016 or by email at Anish@HazanyLaw.com)