For a person who was not a United States Citizen at the time they pled guilty to a criminal charge, the worst possible consequence of their sentence is not the possibility of jail or a fine, it is their potential deportation from the U.S., the government’s refusal to extend their green card; or, them being permanently prohibited from re-entering the United States.

Until recently, the only way to address these post-sentencing consequences was to apply for Post-Conviction Relief (PCR), asserting that the legal representation of the plea lawyer was ‘ineffective assistance’. In regards to these claims, the Courts typically ruled that since the deportation result was merely a ‘collateral’ consequence and not a ‘direct’ result of the plea, that this type of claim was an insufficient basis to grant a PCR petition. ALL THIS CHANGED…when

In two recent cases, the Courts addressed the impact that deportation consequences have on a non-citizen. If you have been denied a PCR petition on these grounds, you should discuss the possibility of refiling the petition with an experienced criminal defense lawyer like those at Bailey & Orozco as soon as possible, to avoid a loss of the ability to pursue this relief due to the passage of time.

• In State v. Nunez Valdez, (July 2009), the New Jersey Supreme Court held that providing a client with misinformation as to the actual deportation consequences of a plea can be a sufficient basis to establish a claim of ineffective assistance of counsel. In addition, the Court rejected the distinction of whether the deportation consequence was direct or collateral, deciding that under the New Jersey State Constitution, providing a client with misleading material information that results in an uninformed plea can be a basis to support a claim of ‘ineffective assistance’ of counsel.

• In Padilla v. Kentucky, (March 2010), the United States Supreme Court held that a lawyer must inform a client whether his plea carries a risk of deportation. In the specific facts of this case, deportation was an automatic result of the charge Padilla pled to, something the plea counsel did not address with his client. Under these circumstances, the Court ruled that the client was able to pursue a claim of ineffective assistance of counsel.

Deportation or permanent exclusion from the United States are serious consequences that can alter a family forever. Before this consequence is accepted by a client, the defense lawyers at Bailey & Orozco seek every opportunity to avoid this consequence for their clients. Please call if we may be of assistance to you.