Post-Conviction Relief for Immigrants

(D)  Examples.  The following is a sample warning of the exact immigration consequences that will flow from a firearms conviction.  Jose has lived in this country as a lawful permanent resident for 30 years, and is married to a U.S. citizen.  He is being offered a plea of guilty to a misdemeanor charge of carrying a concealed firearm in violation of California Penal Code § 12025.

            He should be told:

            If a noncitizen enters a plea to a firearms charge, even if he or she is a permanent resident with U.S. citizen relatives who has lived here for 30 years, the conviction will have the following immigration consequences:

            “(a) He will become removable without doubt.”[169]

            “(b) Upon removal, his lawful permanent resident status would be revoked.”

            “(c) After removal, he will become inadmissible for five years from the United States, i.e., he will be prevented from re‑entering the U.S. on any basis whatsoever during that period unless he can get a waiver of inadmissibility.”

            “(d) If he re-enters the U.S. after deportation after being convicted of this offense, he will be subject to arrest for the federal offense of illegal reentry after deportation, and could be sentenced to federal prison for up to 10 years.”[170]

            “These adverse immigration consequences are definite and assured.  Once convicted of this offense, no other result could occur for this defendant, unless he qualifies for the extremely limited and rare form of relief in immigration court called ‘cancellation of removal,’ and is granted this discretionary relief.”[171]

            Defense counsel advised an amnesty applicant, who had lived in the U.S. and whose wife was also applying for amnesty, that his plea to a felony involving moral turpitude might result in his deportation, exclusion, or denial of naturalization, but that counsel would attempt to obtain a judicial recommendation against deportation.  Was this effective representation?

            No.  Counsel failed to advise him (a) that the felony would disqualify the client from obtaining permanent residence under the legalization program, and (b) that the JRAD has been abolished since November 29, 1990, and the moral turpitude conviction would render the client inadmissible and therefore unable to immigrate through his wife when she obtained lawful permanent resident status. 

            Counsel failed to inform him that conviction of a misdemeanor with a one-year maximum sentence and a sentence of six months or less would enable the client to take advantage of the petty offense exception[172] to the moral turpitude ground of inadmissibility and remove all adverse immigration consequences from this conviction.  Counsel also failed to advise the client that a sentence of imposition of sentence suspended would not count as jail time under the immigration rules, although any time imposed as a condition of probation would count, and failed to attempt to negotiate a sentence of IOSS (a sentence in which “imposition of sentence was suspended”) or a sentence of less than six months.  These omissions violated the client’s right to accurate immigration advice under Soriano, and required vacating the plea to permit the case to be handled with knowledge of the true immigration consequences of the plea.

[169] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[170] INA § 276(b)(3), (4), 8 U.S.C. § 1326(b)(3), (4).

[171] INA § 240A(a), 8 U.S.C. § 1229b(a).

[172] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).