Post-Conviction Relief

Criminal convictions can have complex legal implications for a noncitizen. The applicable rules are constantly changing, and are specific to the defendant’s immigration status, as well as his or her criminal background. Many lawful permanent residents assume that because they have been living in the United States for decades, they do not need to worry about the adverse immigration consequences of criminal charges. This belief is false.

Immigration Consequences of a Criminal Conviction

If you are a noncitizen who has been accused of committing a misdemeanor or felony, it is important to consult an attorney who is very knowledgeable about both criminal and immigration law. The definition of a “conviction” for immigration purposes can differ from what is considered a “conviction” under Maryland criminal law. Only a Maryland Immigration Law Lawyer well-versed in both these subjects can give noncitizens the best legal advice about the consequences of various criminal defense strategies.

Maryland is one of twenty-eight states in which a criminal court judge must advise a noncitizen of the possible immigration consequences of a guilty or nolo contendere plea. Title 8 U.S.C. §1227 sets forth broad criminal and noncriminal grounds for deportation. Any noncitizen who is convicted of a crime of moral turpitude that is committed within five years of the date he or she was admitted to the U.S. (which is punishable by one year or longer of incarceration regardless of the actual sentence a judge imposes) is deportable. The time limit is extended to ten years if a noncitizen has been adjusted to lawful permanent resident status. The list of offenses that may give rise to deportation is too long to cover exhaustively here, but an experienced immigration and criminal law attorney can explain them to you in a consultation session.

Post-Conviction Petitions

There are two types of post-conviction relief available in Maryland to help noncitizens avoid the adverse consequences of their criminal convictions. The first type of relief is called a petition for post-conviction relief under the Uniform Post-Conviction Procedure Act. In order to obtain this type of relief, a defendant must be incarcerated, on parole or on probation. The defendant is guaranteed legal counsel as well as one hearing in the circuit court where he or she was convicted. A judge different from the one who presided over the original plea or trial will hold the hearing and issue a ruling.

The most common basis for relief in a petition for post-conviction relief is that a client did not receive effective assistance of counsel in connection with a guilty plea, at trial, at sentencing, or on appeal. A petitioner can also allege an involuntary plea, prosecutorial misconduct in failing to turn over exculpatory evidence, or other illegalities. In the 2010 case of Padilla v. Kentucky, the Supreme Court ruled that criminal defense attorneys must inform their noncitizen clients of immigration consequences that can arise after a guilty plea. Under this ruling, a noncitizen defendant who has pled guilty, but was not advised of the adverse immigration consequences of his or her criminal conviction may petition for a writ of error coram nobis to vacate the conviction.

Coram nobis relief may be appropriate when a noncitizen faces a significant collateral consequence from a conviction, and the conviction can be challenged on constitutional or other fundamental grounds. In order to qualify for coram nobis relief, other statutory or common law relief cannot be available to the petitioner. Since a presumption of regularity attaches to a criminal case, the petitioner must meet his or her burden of proof to show the proceedings were not regular, and that he or she did not waive the rights being asserted in the petition for coram nobis relief. A noncitizen defendant must not be incarcerated, on parole, or on probation when applying for this relief.

The stakes involved in a criminal case if you are a noncitizen are especially high. Those who are convicted of crimes risk deportation and separation from their families. Get in touch with the experienced Maryland Immigration Law Lawyer at the office of Anthony A. Fatemi, LLC for help in preparing petitions for post-conviction relief. Contact us online or call us at (301) 519-2801 today.