My husband came to the US with his parents when he was 5 years old but never gained citizenship. As an adult he was charged with distribution of cocaine. His lawyer advised him to take a plea bargain instead of going to trial but he didn't warn him of the consequences of having a felony and not being a US Citizen. It is now 8 years later and we have 3 children (1 is mine, 1 is his and 1 is ours together). He has not had any other legal trouble other then minor traffic tickets since. Is there anything we can do to appeal the conviction at this point so he can seek legal status?
Here is some further information that may be helpful:
Under section 2 12(a)(2)(A)(i)(I) of the Act, an alien is inadmissible if he or she has been convicted of a
crime involving moral turpitude. 8 U.S.C. fj 1 1 82(a)(2)(A)(i)(I). Crimes involving moral
turpitude are generally defined as an act of baseness, vileness or depravity in the private and
social duties which a man owes to his fellow men or to society in general, contrary to the
accepted and customary rule of right and duty between man and man. See Jordan v. De George,
341 U.S. 223,71 S.Ct. 703 (1951); Matter of Serna 20 I&N Dec. 579, 581 (BIA 1992). A crime
involving moral turpitude is based on the offender's evil intent or corruption of the mind. Matter
of Serna 20 I&N Dec. at 581.
The Board of Immigration Appeals in in re Khoura held that a conviction
for distribution of cocaine under 21 U.S.C. 5 841(a)(l) (1988), is a conviction for a crime
involving moral turpitude. 2 1 i&N Dec. 1041 (BIA 1997).
Under section 21 2(a)(2)(A)(i)(II) of the Act, an alien is inadmissible for the violation of any law
or regulation of a State, the United States, or a foreign country relating to a controlled substance
(as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)). 8 U.S.C.
5 1 1 82(a)(2)(A)(i)(II). The applicant has been convicted under the California Health and Safety
Code for the transportation/sale and possession/purchase of cocaine. Cocaine is has been
designated as a controlled substance under Schedule I1 of the Controlled Substances Act. 21
U.S.C. 5 812.
Possible Post conviction Remedies in California (check your jurisdiction)
Motion to Vacate Conviction for failure of court to give immigration statutory advisement under Cal. Pen. Code § 1016.5.
Writ of Habeas Corpus on grounds of Ineffective Assistance of Counsel (IAC) for failure to adequately research, advise and negotiate with respect to the immigration consequences of the plea.
Any other basis for vacating the conviction.
Modification of the sentence during probation or if necessary (and possible) nunc pro tunc.
In California, crimes of moral turpitude such a sales, felony spousal abuse etc., comes with the consequences of deportation. Whenever our office is contemplating a plea bargain, it is always better to have a client who is in a similar situation, plead to a simple possession for a little more jail time than to plead to "sales" for lower time, usually a four month difference which results in deportation issues. Pleading to a simple possession charge gives the immigration attorneys more room for argument why he or she should not be deported.
However, you indicate that your husband was not informed of the possible consequences of his plea? Usually on the felony waiver form, at least in our jurisdiction, it will go into detail of the possible consequences prior to entering the plea, in which they initial or sign as having read, explained and understood. You need to check the sentencing transcript as well. In the alternate, you might wish to check with an attorney, since it has been eight years to see if your husband can have the charge reduced from a felony to a misdemeanor. Depending on the actual charge itself, there are some felonies that may not be able to be reduced. However, from what you have indicated, he has remained out of serious trouble, this might be an avenue you may wish to pursue. Best of luck.
No, not after eight years, and plea bargains are not appealable, anyway, and no criminal court in the Commonwealth is going to agree to reduce a felony conviction for cocaine distribution to something less(as suggested by the other attorney) eight years after the conviction.
And, if your husband were now to attempt naturalization as a U.S. citizen, he would undoubtedly find himself placed in removal proceedings in short order.
Your husband should be very, very careful.
M.E. Hendrickson, Esq.
Alexandria, Virginia 22314
Your fact pattern does not include the immigration status of his parents. If his parents became naturalized citizens, it is possible your husband is a citizen. You should consult with an immigration attorney who is skilled in the naturalization process and derivative citizenship.
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