|
Have you been convicted of a crime without knowing the immigration consequences
of your conviction? Are you currently facing criminal charges without knowing
the immigration consequences of a conviction?
Problem: Minor criminal
convictions require, under the United State’s severe immigration laws, the
banishment of even long-term legal permanent residents from the United States.
Frequently, the immigrant defendant would have chosen to go to trial or would
have insisted on a plea to a non-deportable offense had he known that the charge
he was pleading to would as a matter of immigration law require his deportation.
Solution: Set aside the conviction because the legal permanent
resident did not know deportation was a consequence thereof. Pleas made in
ignorance of their consequence are involuntary, void, unconstitutional.
Deportable convictions should be reviewed for any potential ground of
post-conviction relief. Post-conviction has a two year statute of limitations.
For sample pleadings in which an Oregon court ruled in 2004 that a
post-conviction case could be brought seven years after the conviction was
final, see Amended Petition for Post-Conviction Relief and Petitioners Reply to
State's Motion to Dismiss. Oregon Post Conviction generally has a Statute of
Limitations (SOL) of 2 years, but in a Clackamas County case an older conviction
was set aside by arguing that the claim could not be brought upon a case until
Gonzales was published on January 28, 2004. PCR Petitioners should file
Gonzales-based claims through January 27, 2006. The Court of Appeals has not yet
decided this issue.
Post Conviction Immigration Consequence: Sweet Victory! A state of
Oregon, Washington County judge, on July 2000 in a letter opinion granting the
petitioner's request for post conviction relief wrote:
Do Expungements Work to Avoid Immigration Consequences?
Individuals admitting fault as part of some diversion agreements are
deportable based on that admission even where the criminal charge is eventually
dropped by the criminal court due to the successful completion of the diversion
agreement.
In March 1999, the Immigration Court decided that “expunged” convictions that
no longer count as criminal convictions in the criminal courts of the land still
count as convictions in an immigration court. A narrow exception to this rule is
found in the Ninth Circuit Court only and exists only for immigrants who have
completed drug diversion programs for first time offenders.
This exception is extended to immigrants convicted of possession of a
controlled substance, first time simple possession who obtain expungement before
being placed in deportation proceedings or before physical deportation.
Expungement is not automatic but requires no other convictions and can only be
requested (ie: in Oregon) three years after the conviction is final.
|
