A 'Conviction' Is a Permanent Blemish to the Foreign-Born Population That May Never Be Erased - Articles

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Posted by: Christy Gibson on Jun 16, 2014

By Sean Lewis*


On April 4, 2014, the Tennessee Supreme Court held that a guilty plea following expunction is not a “conviction subject to collateral review” under the Tennessee Post-Conviction Procedure Act. For those who do not habla legalese, the high court essentially said that you cannot undo a guilty plea that involves a sentence that was never formally “entered” by the court clerk. Enter the feds who say “we’re going to deport you because of this ‘conviction’ that does not exist!”

Still confused? Read on!

In Jose Rodriguez v. State of Tennessee, No. M2011-01485-SC-R11-PC (Tenn. April 4, 2014), the appellant, a long-term Mexican immigrant married to a U.S. citizen, was not advised by his criminal lawyer that expungement following judicial diversion would cause dire immigration consequences. After completing probation, Mr. Rodriguez expunged his record and was placed into deportation proceedings. The U.S. Supreme Court has said that under the Sixth Amendment, criminal defense attorneys must advise foreign nationals of deportation consequences before advising their clients to plead guilty. [i]  Tennessee judges must also warn litigants of the same possibility before accepting pleas of guilty under Rule 11.[ii]

The Rodriguez decision neither resolves nor reveals the nature of the legal “black hole” faced by non-citizens (or their defense attorneys) when they go to criminal court and face pleas of guilty. Given the complexity of the legal issue, the Court side-stepped any discussion of the due process issues in citing the legislature’s “clear and unambiguous” statutory language defining what is a “conviction” under Tennessee Law.[iii]  Under federal law an expunged Tennessee conviction [iv]  following judicial diversion is a federal conviction, even though it is not under state law.[v]

The Metaphysical Aspect of “convictions” and “Convictions” Implicates Federalism

To understand the ambiguity that underlies the current state of the law, one might begin to feel they are back in college studying existentialism or metaphysics. Remember Immanuel Kant’s ontology and epistemology?

Under federal immigration law a “Conviction” (large letter “C”) exists, regardless of expungement where a non-citizen admits guilt and pays some sort of a price for it, regardless of whether a criminal court judge defers adjudication and later throws out the charges.

Under state law, a “conviction” (small letter “c”) is not a conviction where the imposition of the sentence is deferred and not formally entered following the performance of certain conditions. The Tennessee Supreme Court found that no “judgment of conviction” occurs in this instance even though under federal law a deferred adjudication is a “conviction”.[vi]  In other words, a qualified judicial diversion defendant will plead guilty to a crime and the judge will sign the order finding guilt but later “rip up” the conviction upon the completion of a period of probation. This is Tennessee (post-plea) judicial diversion.[vii] The defendant may then literally set fire to the records in the form of applying for “expungement” and then tell all future employers that he has never been “convicted” of any crime. Again, small letter “c” as in not a “Conviction” (capital “C”).

If the defendant is a non-citizen, for example a legal permanent resident with U.S. Citizen children, a spouse and decades of residency, she/he will be told by the immigration judge that she/he was nonetheless Convicted (Capital “C”). In other words, “Convicted” (large “C”) for immigration purposes but not for state law purposes. The punishment that follows a Conviction in this sense is unusually severe: deportation possibly leading to persecution or death in some cases or at least the separation of families. Many times, defendants will have only a primary school education and initially be ecstatic at the prospect that they have “cleaned” their record. For many people, the punishment of deportation far exceeds any time spent in jail. Sadly, far too many defense attorneys are unaware of or seem to shrug off these harsh consequences.  All it takes is 5 minutes in General Sessions court to ruin his/her life.

In terms of continued litigation, it appears that the Rodriguez decision in the post-Windsor[viii]  scheme of things raises serious questions implicating federalism. As brought to the attention of this writer by attorney and TBA member Mark A. Fulks, a legal challenge may lie where the federal definition of a “conviction” interferes with a state’s exclusive right to define criminal law under the police power. In the context of the Rodriguez case, the State of Tennessee has chosen to forgive and forget a class of persons who have been rehabilitated via judicial diversion and expunction. The federal government, on the other hand, ignores the restoration of individuals to their previously occupied legal status (prior to arrest and conviction) and will seek to punish them via removal proceedings (deportation). The burdens upon on the family of a deported parent or spouse are arguably greater than the burdens imposed on the beneficiaries of the Windsor decision.

Conclusion

The Rodriguez decision certainly falls short of a legal “Copernican Revolution” and leaves it to the other states to sort out a very slippery issue facing the defense bar and immigrants. Certainly the decision was a disappointment to the immigration and defense bars and more litigation is certain to follow.

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*Sean Lewis practices immigration law with his own firm. He received his J.D. from Golden Gate University School of Law. Sean may be reached at (615) 226-4236 or sean@musiccityvisa.com.

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[i] Padilla v. Kentucky, 559 U.S. 356 (2010).

[ii] Tenn. R. Crim. App. Rule 11 (b)(1)(j)*** “if the defendant pleads guilty or nolo contendere, it may have an effect upon the defendant's immigration or naturalization status, and, if the defendant is represented by counsel, the court shall determine that the defendant has been advised by counsel of the immigration consequences of a plea.” Caveat: although this section falls under “Advising and questioning the defendant”, criminal judges do not “advise” defendants regarding their immigration status, nor does this warning relieve counsel of her duties under the Sixth Amendment.

[iii] Rodriguez v. State, at 3-5.

[iv] 8 U.S.C. 1101(a)(48)(i) & (ii) “The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of  guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

[v] Rodriguez at p.8 “[a] guilty plea expunged following successful completion of judicial diversion is not a conviction within the meaning of the Post-conviction Act.”

[vi] Id.

[vii] Known under immigration law as a deferred adjudication, See: 8 U.S.C. 1101(a)((48).

[viii] The United States Supreme Court in United States v. Windsor, 570 U.S. 12, 133 S. Ct. 2675, 2595-96 (2013) recently held that the Defense of Marriage Act is unconstitutional as a deprivation of equal liberty, which the Fifth Amendment protects. In short: state law definition of marriage is within the exclusive province of the states’ police powers.