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Immigration Law Blog

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withdrawing a guilty plea

Withdrawing a Guilty Plea for Immigration

There can be grave immigration consequences from criminal convictions.  We have consulted with many individuals who have pleaded guilty to a crime and have come to realize after-the-fact how their plea is affecting their immigration status.  For certain individuals who were unaware of the immigration consequences of their guilty plea, withdrawing a guilty plea may be an option.

Withdrawing a Guilty Plea for Immigration Purposes

While there are many different reasons that one might be able to file a motion to withdraw a guilty plea, one of the main ones we see in the immigration world is based on an individual’s right to effective assistance of counsel.  The 6th Amendment guarantees someone in a criminal proceeding effective assistance of counsel, and if an attorney does not exercise due care in their representation of their client, and that failure affected the outcome of the case, it can be grounds for withdrawing a guilty plea.

Padilla v. Kentucky is the main United States Supreme Court case governing effective assistance of counsel claims.  In Padilla, the Court held that an attorney representing someone in a criminal case has a duty to advise that person of immigration consequences of any conviction in the case.  If the immigration consequences are clear, an attorney must advise as to the specific effects of the conviction.  If the consequences are unclear, an attorney must still advise that the conviction may carry adverse immigration consequences. Padilla applies to cases where the conviction was final on or after March 31, 2010, and changed the previous rule on an attorney’s duty to advise his or her client. Whereas previously an attorney violated the 6th Amendment only if he or she provided affirmatively bad advice regarding immigration consequences, Padilla held that attorney violates the requirement to provide effective assistance of counsel if he or she remains silent and fails to advise the client as to the potential consequences.

If an individual pleaded guilty and was not properly advised regarding how that guilty plea would affect their immigration status, they may be able to withdraw their plea.  Whether or not this is an option depends on the circumstances, including how long ago the conviction was final and in what court the conviction was entered.

Withdrawing a Guilty Plea from Federal Court

Writ of Habeas Corpus

Someone who is “in custody” may file a petition for a writ of habeas corpus under 28 U.S.C. 2255 if he or she is in custody due to a constitutional violation.  The term “in custody” not only applies to individuals who are in jail or prison, but also to those who have other restraints on their liberty, such as those on probation or parole.  Serving a federal sentence because you pled guilty without having been advised of the immigration consequences of your plea can be the basis of a habeas petition.

Writ of Error Coram Nobis

If the conviction is old and the sentence has been served, an extraordinary remedy involves a writ of error coram nobis.  These petitions are incredibly difficult to win given the procedural requirements, but it’s important to know this is available in certain circumstances.  Federal courts are divided into circuits based on geographic location, and each circuit treats these writs slightly differently, so it is important to familiarize yourself with the law in the particular circuit where the case took place.

Withdrawing a Guilty Plea from Missouri State Court

Missouri Supreme Court 29.07(d) governs withdrawals of a guilty plea, and states as follows:

Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

There is a window of time after a plea and before sentencing where it is much easier to withdraw a plea.  If you have received a suspended imposition of sentence, this window is extended until that is complete.  But after that time, a guilty plea is withdrawn only “to correct manifest injustice.”  Because this is a very vague standard, it creates a lot of discretion for the judge.  It is therefore very important to file a motion that has a lot of detail and provides a strong record as to why manifest injustice exists if the conviction continues to stand.  It is a high standard, but not impossible.  Our office recently worked on a case where a Missouri conviction from 2001 was vacated, so it can happen!

Withdrawing a Guilty Plea from Other Courts

Because our attorneys are not licensed in other states, our rules of ethics prohibit us from giving state-specific legal advice regarding state law and procedure outside of Missouri or federal court.  If you need some advice on these issues, we recommend seeking an attorney who is a member of the American Immigration Lawyers Association and is licensed in the state where you are looking into withdrawing a plea.

If You Haven’t Yet Pled

If you are an attorney seeking to properly advise your client, or you are a client looking into how a plea or conviction might affect your immigration status, we offer comprehensive analyses regarding the immigration consequences of criminal convictions.