by Chris Keen, September 4, 2013
“I thought my case was dismissed! Why is it causing my deportation?!"
In a recent blog called “Is That Plea Deal Really a Deal?", my colleague mentions the frustration by non-citizens who think their conviction has been erased, or dismissed, only to find out that for immigration purposes, it is still there, and is causing them serious problems. I have heard many clients express similar sentiments to me when they entered into a plea in abeyance agreement. A plea in abeyance is a common plea agreement offered to defendants in Utah. It’s probably familiar to most people in the context of a traffic case. When you get a speeding ticket, you can often go to traffic school, and then the case will not be on your record. Your insurance will not go up, and it will be like you never were caught speeding! That is how a plea in abeyance in Utah works.
At first blush, entering into a plea in abeyance seems like a very good option if you’re charged with other types of offenses. Retail theft, crimes of violence, etc. If you fulfill the terms of the agreement, usually paying a fine, and maybe attending some type of class, community service, and/or not committing any further violations for a period of time, then the case will be dismissed. That sounds fantastic, right? Well, for immigration purposes, a case dismissed pursuant to Utah’s plea in abeyance statute is STILL a conviction and can have severe immigration consequences – EVEN IF THE PLEA HAS BEEN WITHDRAWN AND THE CASE IS DISMISSED!!!
This may sound counter-intuitive and even unfair. The State of Utah views the dismissed case as never having happened. A person who pleaded guilty to this type of case was not convicted of any crime and is free to answer any questions in Utah as if he didn’t commit a crime. He can even expunge his record (see a future blog on expungements and immigration law) and there won’t be any record of what happened. However, in front of the Department of Homeland Security, or before the immigration court, it’s a different story.
A plea in abeyance agreement allows the defendant to plead guilty to the offense, and then wait a period of time and comply with some requirements. If all is done correctly, the criminal court will allow the withdrawal of the plea, and then dismiss the case. See Utah Code Ann. §77-2a-3. Because there was a plea and then a punishment (a fine, service, etc.) then this meets the immigration definition of conviction, found in the Immigration and Nationality Act §101(a)(48).
Under current immigration law, a plea that was vacated due to “rehabilitative" measures like attending classes, doing service, paying a fine and behaving for a period of time, is not recognized. Neither is a conviction vacated solely for immigration purposes – an example of this occurs when you tell the judge that because of this conviction, you are getting deported, and then the judge allows you to withdraw your plea. So even though the criminal court may dismiss the case, immigration will still view the case as being valid.
However, if there was an error of some sort in the proceedings, such as a Constitutional defect – let’s say you were not allowed to have an attorney. Then based on that defect, if you withdrew the guilty plea, then the withdrawal of the plea would have to be recognized by the immigration authorities, because it was on a Constitutional basis.
Now, this law was created not by congress in statute, but by the Board of Immigration Appeals (“BIA", for short). I happen to strongly disagree with this interpretation of the law that they have created. If the State court where the conviction occurred decides, for whatever reason, to eliminate the plea, I think that the conviction should not be able to be used against the individual. The main case the BIA decided this issue is Matter of Pickering. Interestingly, the Pikcering case was appealed to a higher court – the 6th Circuit, and that higher court overruled the BIA in Pickering. Attorneys are fighting this rule and hopefully some day the law will change with respect to the Pickering decision.
Back to my example of a constitutional defect – not being given the right to an attorney. Almost everybody knows that right – it’s in all the police shows on TV and in the movies, “You have the right to remain silent, you have the right to an attorney". Pretty much all courts in the United States allow all criminal defendants to have an attorney. A more common example is when your attorney didn’t properly advise you of the immigration consequences of the plea. In that case, the withdrawal of the plea and the vacated conviction WILL be recognized by immigration. This particular example may sound confusing because the reason for the plea to be vacated can’t just be that you are suffering immigration consequences. Just because the plea will cause your deportation, and the judge and the prosecutor feel bad about that and allow you to erase the plea, that will not help you in immigration.
There is a part of the Constitution in the 6th Amendment that guarantees each defendant the right to the effective assistance of counsel. If your attorney fails to properly tell you the clear immigration consequences of the plea, then that may be a violation of the 6th Amendment, and that will be a proper basis for the withdrawal of the plea, and such a procedure WILL be recognized by immigration. Of course there are many rules in each State as to when you have to bring up this type of argument, and you will have to consult with an attorney to find out whether you can request to have your plea vacated.
If you’ve entered into a plea in abeyance and you want to withdraw the plea – better do it quickly, because you need to ask for that within 30 days of the plea! You’ll have to show that the plea was not knowing and voluntary.
Since most Utah pleas in abeyance are usually vacated solely because of compliance with an order, and not due to any constitutional defect or error, then the conviction will remain in force for immigration purposes. So be very careful when considering a plea in abeyance as an option – it may be good for a US Citizen, or if you are concerned about keeping a conviction off your record for state purposes. But if you’re concerned about immigration consequences, a standard plea in abeyance offered by most prosecutors will result in you having a conviction for immigration purposes.
There are several alternatives a defendant can look to in avoiding a plea to a crime that will cause deportation. For instance, pleading to a different type of crime, or in some cases making sure the length of the sentence is low enough. The rules with respect to this are pretty complex, and changes in the law occur regularly. Work with an immigration attorney in addition to a criminal defense attorney whenever you are facing what you think may be even a minor criminal charge. See my future article on Crimmigration – Criminal Defense and Immigration Attorneys working together.
4839-0508-8789, v. 1