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Misdemeanor appeal

Alexandria, VA |

I pleaded guilty to a misdemeanor in September 2011 because my lawyer adviced to it, (No driver's license charge in Alexandria city, VA, sentenced to 10 days but suspended) It is possible to appeal that sentence because I did not know that it will affect my immigration status (TPS). Is it possible to drop it to infraction. Is it too late to appeal? Thanks

Attorney Answers 4


  1. Consult a competent criminal attorney in your area to find out if you may still collaterally attack your conviction.

    Contact immigration attorney Gintare Grigaite, Esq. at 646-407-2331. Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.


  2. It is possible, under the U.S. Supreme Court holding in Padilla V. Kentucky, to vacate some guilty pleas if you were not advised of the immigration consequences. However, this often requires coordination between attorneys in the criminal courts and immigration attorneys to get everything done precisely right.

    This is a tricky area of law, and there are still cases pending before the Supreme Court about how the Padilla holding should be applied. You would be best of retaining an attorney who is experienced in handling criminal issues for immigrants.

    This answer is intended as public information about a legal topic. Answers posted here do not create an attorney-client relationship. For specific legal advice, please make an appointment to speak with an attorney in private.


  3. The time deadlines for an appeal to the Circuit Court or for a motion to set aside the verdict have long since passed, but you may have a basis for setting aside the guilty plea based on the poor advice of your lawyer. You will need to search around and interview lawyers to see if you can find someone who has filed motions in Virginia to set aside a criminal case based on immigration issues. Do not delay in starting that process. The good news is that the judges in the Northern Virginia courts are generally aware of immigration issues and so this will not be a comletely novel concept to the judge.


  4. In VA, you may have grounds for a Padilla-based habeas writ since the conviction occurred within the past 2 years. If your attorney didn't know about your non-citizen status and/or gave you incorrect advice regarding the conviction's effect, the claim will be stronger.

    Disclaimer: This answer is for informational purposes and does not take the place of a consultation with an experienced immigration attorney. This answer does not create an attorney-client relationship.

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