Deportation and Immigration Consequences of a Guilty Plea
In State v. Nunez-Valdes, the Supreme Court of New Jersey recently permitted a convicted defendant to withdraw his guilty plea because he had not been properly advised of the immigration consequences of his plea to a crime. As an attorney representing any defendant, this opinion serves as a "wake up call" of the importance of advising your non-citizen clients of the immigration consequences of convictions. One's failure to do so can result in a legal malpractice case against you and a Post Conviction Relief Motion claiming that (you) were ineffective in your assistance of counsel.
I have had to file a Post Conviction Relief Motion on behalf of a client whose prior attorney told her she would not face deportation at the time of her plea. Unfortunately, after returning from a trip to Poland, a red flag was raised upon her reentry. After a hearing before a Superior Court Judge, which included expert testimony from an immigration attorney and honest testimony from her prior attorney, the Judge granted her the right to vacate her plea. Before entering into a plea bargain to an offense that wouldn't be a crime, I still had her consult with the immigration attorney.
It is important to ascertain your client's legal status so that you can advise them properly of the consequences for pleading guilty. One resource you can use to assist you is a reference chart available at www.immigrationdefenseproject.org. Click on Resources and you will find the NJ chart. If you are not certain and you want to assure your client and yourself of the proper advice, you may want to consider having your client engage in a consultation with an immigration attorney.
This is a very interesting issue, as it may allow lawyers to vacate guilty pleas in DUI cases. In the case of Padilla v. Kentucky, the U.S. Supreme Court will decide whether a lawyer's failure to inform a client of immigraton consequences will constitute ineffective assistance of counsel which would allow defendants to challenge their guilty pleas, pursuant to the 6th Amendment.
Brian E. Simoneau
Mass. DUI Lawyer