Removing Convictions to Avoid Immigration Problems
The number of deportations in the United States is up sharply since 2016, in fact it is soaring. This is why so many non-citizens who fear being seized for deportation or refused re-entry after taking a trip outside the United States and then attempting to return are, in record numbers, contacting immigration lawyers to either begin the process of trying to become American citizens or trying to make sure they can retain their legal status here.
Additionally, those with even seemingly minor criminal charges on their record are frequently told there is nothing that can be done for them in the immigration court as long their criminal record exists.
The cases can be heartbreaking where, for example, a non-citizen living here for decades who owns a home and business in the United States along with having an American spouse and American children may be ripped apart from that family and deported. In one recent case here in Massachusetts, a man who came to the United States when he was 6 months old and is now in his late 50s was deported despite the fact that his mother, who is in her 90s, and all his children, his many siblings, cousins, nieces, nephews, aunts and uncles are here. He cannot even speak the language of the country he is deported to, knows virtually no one there and cannot work there.
That is why the only alternative may be to hire an experienced criminal defense attorney in Boston, MA to try to un-do or vacate the previous guilty plea or admission in court.
This is not the way it was in the courts here in Massachusetts decades ago. Part of the reason may be that, before records were preserved online and computers spoke to each other, access to such records was greatly limited even between the governmental agencies and courts. Also, there were fewer deportation attempts and fewer consequences once an immigrant turned his life around and put his or her often decades-old criminal record behind.
The most common way for a non-citizen to try to withdraw a guilty plea in Massachusetts is through what is known as a motion for a new trial. When such a motion is granted, the typical reason is that, at the time of the plea, some procedure during the actual plea was not properly followed such as one was not specifically informed of the Constitutional rights they were giving up when they either pled guilty or admitted to an offense. In order for a guilty plea to be valid, it must be made knowingly, intelligently and voluntary. A defendant should not later on learn that there are consequences to making the plea of which they were never informed of such possibility in advance.
Perhaps the non-citizen got bad advice from his or her counsel. It is not uncommon that someone will say that they pleaded guilty to a crime that they were not guilty of because they were perhaps a teenager who knew nothing about legal procedure and were told by their lawyer that, if they only pleaded guilty, the case would be over and they would not go to jail. The person who pleaded guilty to an offense then learned, perhaps years later, that by doing so, they eventually sealed their fate by ensuring that they would be deported or barred from becoming a citizen and there was virtually nothing they could do about it.
The reason it can be tough to ever withdraw a plea once made is that at the time of the plea, Massachusetts, similar to the courts in every other state, has one sign a piece of paper stating all the rights one is giving up such as the right to a trial and also gives a variety of warnings such as the immigration consequences of a guilty plea if not a citizen, The judge will then, on the record, verbally go over these waivers of rights and warnings with the defendant before a plea is accepted. The courts do this because they do not want someone to admit to or plead guilty to something, then come back later saying they didn’t know what they were doing when they pleaded guilty because they were, perhaps, nervous and nothing was explained to them. The court would then pull out the signed sheet and the recorded audio showing that the person repeatedly confirmed they knew they were giving up their right to trial, knowingly, willingly and voluntarily.
One of the reasons all courts without exception insist on these waivers of rights by the defendant before accepting a plea is because only approximately 6 percent of all criminal charges in American courts result in a trial. The majority plead guilty or admit to the offense unless the case is dismissed earlier. Courts do not want to unnecessarily have to constantly reopen and proceed all over again on cases that were already disposed of and closed.
Still, one shouldn’t be completely discouraged since a number of these requests to withdraw a plea are successfully granted. Occasionally, it is discovered that the official court paperwork is missing or left blank or filled out erroneously and this might be a reason to withdraw the plea. Also, there are times when the judge or the defense lawyer, indeed, did not adequately explain to the defendant the rights he or she were giving up when they did the plea.
Additionally, sometimes a person can withdraw a plea when it turns out that they were not fluent in English yet had not been provided an interpreter to translate for them and help them completely understand what went on in court.
Recently, a great many motions to withdraw a guilty plea have been granted in cases where a defendant who is not a citizen was not adequately explained his or her immigration rights and now claim to be surprised that the plea they made in the past is now the cause of them being deported or facing other immigration consequences.
The reason many of these cases have been particularly successful is because of a decision that came down several years ago called Padilla v. Kentucky. That case said that it is no longer sufficient if the non-citizen doing the plea was only warned in a general way that a plea might have immigration consequences such as deportation, preventing one from ever becoming a citizen or would block one’s readmission into the United States if they travel outside it. The case said that attorneys and the court must advise a person that their guilty plea clearly and unambiguously “will” result in their deportation if the particular law they broke makes deportation or other very specific punishments inflexibly definite. This is a new law that can be applied retroactively. That means that, even if you had an excellent attorney who did everything right for your plea years ago under the law as it existed before the law changed under the Padilla case, you will still have an opportunity to get your guilty plea reversed and thrown out.
There are a number of reasons why a plea of guilty may be withdrawn which may help to avoid immigration consequences even many years later and a consultation with an experienced criminal defense attorney can advise you on your possibilities for achieving this. This could possibly clear the path for either preventing deportation, achieving legal status or becoming a citizen.