A Legal Minefield: Guilty Pleas and Immigration Consequences

by , under 306 Culture and Institutions

ICE-seal (2)

By U.S. Immigration and Customs Enforcement (USICE) [Public domain], via Wikimedia Commons

For non-citizen residents of the United States and undocumented persons, entering a plea of guilty to even a minor criminal offense can have very harsh immigration consequences, including loss of the ability to obtain a favorable immigration status or citizenship—and even deportation. The law requires attorneys to advise their clients regarding any such possible immigration consequences of a plea bargain agreement; those who may face immigration consequences as a result of a guilty plea should consult with an immigration attorney.

In a recent Tennessee Supreme Court decision Jose Rodriguez v. State of Tennessee, the court rendered a decision that truly underscores the importance of a criminal defense attorney’s duty to advise his or her client on the possible immigration consequences of a plea. In this case, Mr. Rodriguez pled guilty to the misdemeanor charge of patronizing a prostitute and was placed on probation and granted a judicial diversion. (If a defendant is granted a judicial diversion in Tennessee, a judgment is not entered by the Court and a “conviction” is not placed on the defendant’s permanent criminal record.) At the end of the diversion probation period, if the defendant has complied with all the conditions of probation, paid all of his or her costs and fees, and not incurred any more charges, the defendant can apply to have all records of the arrest, charge, and guilty plea expunged. Upon such an expungement, the defendant is restored under the eyes of Tennessee law as if the crime never happened. In other words, as far as the law is concerned, the crime did not happen. Mr. Rodriquez was successful on diversion and obtained an expungement.

For the purposes of the decision, the Court assumed that Mr. Rodriquez’s plea in and of itself would have adverse immigration consequences. On his Petition for Post-Conviction Relief that was before the Court, he complained that his defense attorney never advised him of the immigration consequences that could arise from the guilty plea he entered before he was placed on probation and granted a judicial diversion.

A unanimous Supreme Court refused to hear the Petition, reasoning that a guilty plea expunged after the successful completion of judicial diversion was not a conviction that could be challenged in a Petition for Post-Conviction Relief. The Court found that such a Petition can only challenge a “conviction” in the sense of a conviction entered by a judgment of guilt following a guilty plea or a trial. With judicial diversion, no judgment or conviction of guilt is entered at the front-end, and won’t ever be entered unless the defendant violates probation.

The logic of the Tennessee Supreme Court seems sound: a guilty plea expunged after successful diversion is not a “conviction.” However, it raises the ancillary issue of how a guilty plea expunged under Tennessee law could have adverse immigration consequences in federal immigration Court. After all, under Tennessee law, a crime expunged after a successful diversion, for all intents and purposes, did not happen.

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