Immigration Removal & Post-Conviction Relief

Criminal convictions, no matter how old, can be problematic for those seeking relief under U.S. immigration laws. Many criminal offenses charged as misdemeanors under state law are considered an “aggravated felony” for immigration purposes. Non-citizen immigrants, or “aliens,” charged by the government as having one or more aggravated felony convictions may be deemed “removable” and put into removal or deportation proceedings. Often, the way in which a sentence was written triggers removability under the Immigration & Naturalization Act (INA).

immigration arrestIn 2010, the U.S. Supreme Court held that the Sixth Amendment requires that a defendant in a criminal proceeding be correctly advised of the immigration consequences of a guilty plea. Padilla v. Kentucky, 559 U.S. 346. The actual advice given varies with the particular circumstances of each case. However, following Padilla the Georgia Supreme Court ruled recently that where “the law is clear and deportation is mandatory…an attorney has a duty to accurately advise his client of that fact.” Encarnacion v. State (Sept. 22, 2014). The failure to do can present a claim of ineffective assistance of counsel – a potential ground for overturning a conviction based on a guilty plea.

For an immigrant facing removal based on a criminal conviction or guilty plea, there are several possible avenues of post-conviction relief. If the person pled guilty without adequate advice from counsel concerning immigration consequences (as in Mr. Encarnacion’s case), grounds may exist to seek to overturn the conviction through a habeas corpus petition filed with the state court. For the best chance of success, a habeas petition should be prepared and filed by an attorney experienced in post-conviction relief matters.

If a misdemeanor conviction is considered an aggravated felony under the INA due solely to the way the sentence was written, post-conviction relief in the form of sentence correction or clarification could be available. The attorney representing a person needing such relief would first obtain a complete copy of the court’s file in the criminal case, and then file a motion for clarification to ensure that the sentence intended by the court and actually completed by the defendant did not meet the criteria for an aggravated felony under immigration law. Often, relief from the sentencing court can be obtained by counsel first seeking the consent of the state’s prosecuting attorney’s office.

Finally, if neither of these avenues for relief is available one could petition for a pardon if the legal requirements for doing so are met. In Georgia, to apply for a pardon a defendant must have (1) completed all sentence(s) imposed at least five years prior to applying, including the payment of all fines, (2) lived a law-abiding life since the completion of the sentence(s), and (3) have no pending charges. Again, someone seeking relief in the form of a pardon is well-advised to seek the help of qualified and experienced legal counsel.

The Atlanta GA immigration attorneys at Brownstein & Nguyen have over 20 years of experience in immigration law, including representing clients in removal proceedings and seeking post-conviction relief for those who qualify. If you or a loved one is currently facing removal based on a prior criminal conviction, contact us today for help.