Post-Conviction Relief And Immigration Consequences

Posted on August 22nd, 2012, by Jennifer Varughese in Immigration Law. 2 comments

Immigration Criminal ConvictionsOver the years, I have met with scores of non-citizens who entered into criminal plea agreements without being aware of potential immigration consequences. Whether old or recent, a criminal conviction can have devastating effects on one’s immigration status. While consequences such as probation or incarceration may be expected, a non-citizen can sometimes be confronted with a more dire consequence – deportation.

Post-conviction relief (PCR) refers to reopening criminal convictions in the hopes of vacating a conviction or modifying a sentence so as to avoid unintended immigration consequences. Up until a few years ago, the rules governing PCR were murky in the nation as a whole and in Virginia specifically.

Then, in mid-2009, I was able to convince an Alexandria Circuit Court Judge to reduce my client’s 1997 petit larceny conviction from 12 months to 360 days because of ineffective assistance of counsel by my client’s former criminal defense attorney. This modification took the client out of the “aggravated felony” category of the Immigration & Nationality Act [see 8 USC Section 1101(a)(43)] and saved him from near certain deportation. The Commonwealth of Virginia then appealed the Alexandria court ruling to the Supreme Court of Virginia.

While that appeal was pending, the U.S. Supreme Court issued its landmark holding in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). The Padilla ruling obligated criminal defense counsel – both public defenders and private counsel – to inquire into a client’s immigration status and, if a non-citizen, to inform the client whether a guilty plea carries with it a risk of deportation.

For its part in our case, the Supreme Court of Virginia focused not on Padilla but on the specific means by which our client sought PCR. In Commonwealth v. Morris, 281 Va. 70 (Va. 2011), the Court held that the writs of audita querela and coram nobis (used by the Alexandria court in our case) are not viable vehicles to bring an ineffective assistance of counsel claim and struck down the sentence modification. The Court held that the proper vehicle for an ineffective counsel claim is a writ of habeas corpus pursuant to Va. Code Section 8.01-654. Unfortunately, however, a Virginia habeas filing can only take place within 2 years of a conviction.

Given the magnitude of the Virginia Supreme Court’s decision for anyone seeking PCR in Virginia, the Morris case was then appealed to the U.S. Supreme Court.

Commonwealth v. Morris was the first case presented to the U.S. Supreme Court over the issue of whether the Court’s holding in Padilla is retroactive. Unfortunately, the Supreme Court denied the petition for writ of certiorari in the Morris case in 2011.

However, the Court later granted a writ of certiorari in a similar case arising out of the Court of Appeals for the Seventh Circuit: Chaidez v. United States. Oral argument for Chaidez is scheduled for October 30, 2012.

Courts nationwide have split on the issue of Padilla retroactivity. In July 2012, for example, our local Court of Appeals for the Fourth Circuit held that the Padilla holding is not retroactive. U.S. v. Mathur, 2011 WL 2036701 (4th Cir. 2012).

With Chaidez, the U.S. Supreme Court will confirm whether the holding in Padilla applies to convictions entered before March 31, 2010 (the date Padilla was decided). If found to be retroactive, Virginia will have to broaden its scope of those eligible for PCR.

If you have an older conviction that may result in deportation or prevents you from obtaining a green card or naturalization, the Chaidez case is one to watch. Stay tuned to this website and our Facebook page for future updates regarding the Chaidez case and the ever-evolving consequences of criminal convictions in immigration law.

Update: As a result of Hurricane Sandy, oral argument for the Chaidez case was moved from October 30, 2012 to November 1, 2012.

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Jennifer S. Varughese is the lead immigration attorney at Livesay & Myers, P.C. Her immigration law practice covers both family-based and employment-based green cards, temporary visas, adjustment of status for those already present in the country, citizenship, and deportation cases. Ms. Varughese has been recognized for her work in the area of the immigration consequences of criminal convictions.


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