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Feb 11

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Can an overturned conviction be used as evidence for Immigration Court?

Let’s suppose you are in Mr. Chavez-Reyes’ shoes:

  • Non-citizen/immigrant
  • You are unlawfully stopped by police
  • Charged with a federal crime,
  • Pressured to plead to the crime to avoid a higher sentence that could be imposed at trial, and
  • Find out from a new attorney that you were in fact unlawfully stopped;
  • Appeal your conviction;
  • You win – your conviction is overturned!
Does this story have a good ending?  Unfortunately not.
In Mr. Chavez-Reyes’ case, the same court (9th Circuit)
who overturned Petitioner’s conviction for possession of cocaine with intent to distribute, subsequently used that same conviction as evidence that he should be removed.
How is this possible? Unlike many immigration statutes, which require a criminal conviction before imposing immigration consequences, § 1182(a)(2)(C)(i) or  INA  §212(a)(2)(C)(i) requires only a “reason to believe” that the non-citizen engaged or assisted in illicit trafficking of drugs.y, not due to the current state of immigration law.  As a general rule, a voluntary guilty plea to criminal charges is evidence that the petitioner did, in fact, engage in the charged activity, even if the conviction is later overturned for a reason unrelated to voluntariness.  This includes convictions that are expunged or cleared from your record.

I am particularly troubled by this case because the Court is saying that Mr. Chavez-Reyes would have pled guilty to the crime regardless of the fact that his arrest is was unlawful.  The high court seems to not appreciate how it feels to be an immigrant or non-citizen the criminal justice system.  For many of these non-citizens, it may be their first contact with the system, time in jail, and separation from their families.  They are desperate to plead as quickly as possible in order to simply get out of jail and be reunited with their families.

Had Mr. Chavez-Reyes know that his arrest was unlawful by his public defender or private attorney, he surely would have given a second though to pleading guilty.  In fact, he may not even had to make a decision to enter a plea as many cases are dismissed at this stage through what is known as a Motion to Suppress evidence based on unlawful arrest.

How do you protect yourself from this low “reason to believe” standard?  By hiring an attorney for criminal court that is competent in both immigration and criminal law.  Unfortunately, hiring just a criminal attorney, without immigration experience, is risky because the attorney does not have your long term interest in mind.  Whereas, an attorney who sees the big picture, extending all the way to Immigration Court, will aggressively challenge the charges early on in the process before you plead guilty.

*For more information, see Manuel Chavez-Reyes v. Eric Holder, Case no. 10-70776, 9th Cir. Published Opinions (1/27/2014)
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Permanent link to this article: http://blog.weismanlawyers.com/can-an-overturned-conviction-be-used-as-evidence-for-immigration-court/

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