- Deportation & Removal
- Lawful Permanent Residence
- Removal of Condition (I-751)
- Consular Processing
POST CONVICTION RELIEF
In some cases aliens who are facing deportation as a result of criminal conviction(s) may not have any available relief or waivers under the Immigration and Nationality Act. This especially true for aliens convicted of aggravated felony under Section 212(a) or §237 of the INA, or aliens who have not accrued sufficient time, or do not have family ties or other equities necessary for cancellation of removal relief. Conviction of an aggravated felony carries the maximum penalty for an alien who is not a U.S. citizen. The penalty is automatic deportation, no matter the equities such as family ties, length of residence in the U.S., hardship in the alien’s native country. In fact, any alien who is convicted of an aggravated felony and apprehended by ICE is subject to mandatory detention, meaning that the alien would never be released from ICE custody unless the immigration judge ultimately terminates proceeding against the alien. Furthermore, some aliens who are not convicted of an aggravated felony may nevertheless be deportable under non-aggravated ground of deportability. There are waivers such as cancellation of removal and 212(c) waivers available to aliens who have accrued sufficient time for continuous residency and may have qualifying relatives. Unfortunately, for some aliens who have criminal convictions and are in deportation proceeding prior to acquiring sufficient time for continuous residency, the only defense available to them may be to seek post-conviction relief, such as withdrawal of guilty pleas and/or amendment of sentence imposed, nunc pro tunc (meaning dating back to the original date of sentencing).
To be clear, only a guilty plea can be withdrawn and a guilty finding reached after trial cannot be withdrawn. The most common circumstance is that an alien entered a guilty plea on advice of his or her criminal lawyer who did not understand or misunderstood the immigration consequences for the alien defendant for entering the guilty plea. The other scenario is that the alien’s criminal lawyer never asked the criminal court judge to impose a sentence of 364 days instead of the standard sentence of 365 days for most misdemeanors. Some criminal lawyers do not know that a simple misdemeanor can become an aggravated felony for immigration law purposes since the common meaning of a felony is a crime that carries over 1 year in jail. Therefore, these criminal lawyers assume that “aggravated felony” must be a regular felony accompanied by aggravating circumstances. Nothing can be further from the truth.
For instance, INS §101(a)(43)(F) defines as “aggravated felony” “a crime of violence for which the term of imprisonment is at least a year. The standard sentence for simple assault or domestic violence is 365-day sentence. Similarly, INS §101(a)(43)(G) also defines “aggravated felony” as a theft or burglary offense for which the term of imprisonment is at least a year. First degree theft is the stealing of another person’s property that is worth more than $1,500, and second degree theft is the stealing property of another worth between $250 and $1499. Shoplifting which is equivalent of third degree theft is the stealing of another person’s property worth $250 or less. Most theft offenses except for shoplifting carry sentence of at least 1 year or more, unless the court is specifically moved to impose a sentence of 364 days.
How to Withdraw a Guilty Plea or Amend Sentence Nunc Pro Tunc.
Our post-conviction practice is limited to King, Pierce and Snohomish counties. We usually start by consulting with the alien to discuss all representations or warnings regarding the consequences of the plea provided by the former defense counsel and/or the court at the time when the alien plead guilty. From experience, we have found that some defense counsel simply do not inquire about the immigration status of the alien (maybe assumes alien is a U.S. citizen) and therefore fail to warn the alien to seek the opinion of an immigration attorney; some defense counsel just take the alien client’s word that he or she is “legal” without inquiring further as to whether they are citizens, lawful permanent residents or other immigration status; some defense counsel misrepresent the immigration consequences of the plea to the client because they do not have accurate information or are over-worked and just want to get the case over with.
In our experience, the criminal court will ordinarily review any motion for withdrawal of plea or sentence amendment on the criminal rule CrR 7.8. It is essential for motion for plea withdrawal or sentence amendment to be thoroughly briefed and strongly supported by evidence, as the criminal court on the CrR 7.8 (c)(2) may deny the motion without a hearing if the fact alleged in the affidavits do not establish grounds for relief. In this jurisdiction, there are generally issues and factors that enhance the success or failure of motion of post-conviction relief. These factors are:
Jurisdiction of the court to amend after the one-year time limit mandated by RCW 10.73.090. The initial huddle anyone seeking post-conviction relief faces in Washington is that RCW 10.73.090 imposes one-year time limit for collateral attacks on a judgment that is valid on its face. However, one-year time limit may be equitably tolled on the State v. Littlefair, 112 Wn.App. 749 (2002). A defendant moving to withdraw his guilty plea must show by a preponderance of the evidence that he was not properly advised of the immigration consequences. State v. Holley, 75 Wn.App. 191, 876 P.2d 973 (1994). To establish that criminal counsel was ineffective is assisting or advising the defendant to plead guilty, it must be shown that defense counsel actually and substantially assisted his client in deciding whether to plead guilty. State v. Malik, 37 Wn.App, 414 (1984). The court will allow withdrawal of plea when the defendant can show that defense attorney affirmatively misrepresented consequences of pleading guilty to the defendant.
The Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. ______, 130 S. Ct. 1473 (2010), clears the confusion generated by the line of court opinions dealing with collateral challenges (challenge of a judgment valid on its face). The Supreme Court basically has imposed the duty on the defense attorney, that he must advise a client whether his plea carries a risk of deportation where the risk of deportation is clear. However, in those cases where the risk of deportation is not so clear, the defense attorney must advise the client to consult an immigration attorney. The result of the Padilla case is that more cases where guilty pleas were entered are now subject to challenges. Therefore, if you are facing deportation as a result of criminal conviction, and you are ineligible for waivers or other relief, withdrawal of your guilty plea is now a viable means to fight your deportation problem and stay in the United States.
RCW 10.40.200 creates a statutory right to be advised of the immigration consequences entering plea. Almost every court in Washington states is aware of this provision and has amended their Statement on Plea of Guilty form to contain this immigration advisory. Therefore in the event that you enter your guilty plea without the court advising you of the immigration consequences that may be a viable ground to withdraw your plea.
Discretion of the criminal court judge to vacate. From experience, the criminal court judge generally grants the motion to vacate or withdraw or amend the guilty plea and all sentences if the judge is sympathetic to the alliance situation. Factors that may influence the chance of success of whether the court would grants the motion to withdraw include the alien’s criminal history, rehabilitation, compliance with sentence and parole requirements, and hardship to the family in event of deportation. By far, the most important factor criminal court weighs in granting motion to withdraw plea, the judge’s impression of the alien defendant during the course of his or her case before that judge. An example of this situation occurred in one of our cases, where we filed a motion to withdraw a plea. In this particular case our client had a lot of equities such as strong family ties to the United States, long residency, etc. The judge however, was unsympathetic to our client situation because the judge recalled that our client missed his court hearings and the judge had to issue warrants for his arrest. The judge also recalled that on the occasions where our client appeared for his court hearings, he was always late. Therefore, an alien defendant who has a history of dilatory or uncooperative behavior may not be as successful in withdrawing a plea or amending a sentence to avoid immigration consequences.