Immigration Consequences in Criminal Plea Agreements in Indiana

Immigration Consequences in Criminal Plea Agreements

Are you living in the United States as an immigrant or noncitizen status? If you find yourself in legal trouble you could be facing more than just conviction as a consequence with deportation looming over your head.

In a recent Supreme Court decision, Lee v. United States, 582 U.S. (2017), the Court reversed a criminal conviction by a noncitizen after he was given erroneous advice by his counsel, leading to his mandatory deportation.

This is an important development in immigration law due to the changes under the new President. This individual was given advice by his attorney to plead guilty to criminal charges with the assurance he would not be deported and that it was his best option.

While taking a plea can often result in a more optimistic sentence, this was not the result for Mr. Lee. Due to his attorney’s inexperience in the area, the defendant plead guilty to an ‘aggravated felony’ under the Immigration and Nationality Act, 8 U.S.C 1101(a)(43)(B) and thus ordered to mandatory deportation (Id. At syllabus p. 2). Some additional Criminal Offenses that can be considered aggravated felonies are murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance or fire arms, offenses related to prostitution, fraud, and obstruction of justice. This list is not exhaustive but demonstrates some of the crimes that could get you deported.

Fortunately for Lee the 6th District held, “When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial,’” Id. citing Hill v. Lockhart, 474 U.S. 52, 59.

Defendants who have taken a guilty plea, when in reality wished to go to trial, must demonstrate they were influenced to this decision by reasonable probability and error on behalf of their attorney. This applies even if trial would be less successful than taking a plea.

The decision to take a plea can sometimes be more than deciding if you are innocent or guilty, especially in situations that could lead to deportation. If the defendant in this situation would have been aware that he was facing such a serious punishment, he would have gone to trial. If something other than conviction is the defendant’s determinative issue, it may be worth the long shot of going to trial even if not likely.

The Sixth Amendment provides that any defendant be afforded effective counsel, if you are in this country as a noncitizen and have accepted a plea agreement against your wishes, give Banks & Brower, LLC a call.

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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
(317) 870-0019