Relief for Non-Citizens Facing Immigration Consequences for Deferred Judgement
Colorado has passed a new law to provide relief for non-citizens who were given incorrect legal advice by their attorneys when entering a “deferred judgment” plea agreements.
Deferred Judgements: Federal Immigration Law vs State LawA deferred judgement is an agreement where a defendant pleads guilty, completes certain terms and conditions agreed to in the plea, and upon completion, the case is dismissed and can be sealed. The problem for non-citizens, however, is that federal immigration law sees things a little differently. In federal immigration court, because a deferred judgement starts with a guilty plea, it is as if a person was convicted of the crime and the case was never dismissed. A conviction can have numerous consequences, including preventing a non-citizen from renewing a work or student visa or becoming a citizen.
Incorrect Advice and Lack of ReliefThe difference between federal and state law led to many defendants being incorrectly advised that there would be no adverse immigration consequences if they accepted and completed a deferred judgment because the case would be dismissed. To make matters worse, Colorado law prevented those that had been incorrectly advised from raising an “ineffective assistance of counsel claim” on appeal – a claim normally raised when an attorney fails to provide correct legal advice to a client—because the cases, as far as Colorado courts were concerned, had been dismissed, rendering the issue moot. Those who had been incorrectly advised were left with no avenue for relief.
Senate Bill 30: Petition for ReliefSenate Bill 19-30 aims to fix this problem by providing a special procedure that allows a defendant to petition the court to vacate their guilty plea for a case that has been dismissed after a successfully completed deferred judgement. The new law requires that a defendant file a petition alleging that they have suffered, are suffering or will suffer adverse immigration consequences and that their guilty plea was unconstitutional because they were not advised of the potential for adverse immigration consequences.
Once a petition is filed, the prosecution has 21 days (or longer with good cause) to respond. If the prosecution does not respond, the petition will be granted. If the prosecution objects, the court will set a hearing on the matter and the prosecution must show by a preponderance of the evidence that either (1) the defendant will not suffer any adverse immigration consequences or (2) that the guilty plea was not unconstitutional and the defendant was advised of the potential immigration consequences.
If a petition is granted, the court will vacate the guilty plea. Once the guilty plea is vacated, there is no longer a conviction for immigration purposes.