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Virginia Larceny Case Shines Light on Immigration Issues

In February of this year, the Virginia Supreme Court reversed the conviction of an Ethiopian immigrant who has been in the United States since the age of nine. Michael Zemene, whose father obtained asylum in the United States as a political dissident in his home country, became a lawful permanent resident (LPR, more commonly known as a green card holder) in 2005. In 2012, he was arrested for shoplifting $33 worth of beer.

Mr. Zemene had a court appointed attorney who advised him to plead guilty to petit larceny, a misdemeanor carrying a maximum sentence of one year in prison. The sentence was suspended and Mr. Zemene was released, but he had expressed concerns about the immigration consequences of his plea and claimed that he felt rushed to take the deal.

As it turns out, his fears of immigration consequences were realized when agents from Immigration and Customs Enforcement arrested him and initiated deportation proceedings against him. Under federal law, the crime to which he pled guilty constituted a removable offense because it was punishable by a year’s imprisonment. Under that law, his actual sentence was not relevant. All that mattered was how the crime was classified and how it could have been punished. He sought to withdraw his plea in state court (through a procedure known as a habeas corpus motion), claiming ineffective assistance of counsel. After an initial denial of his motion at the trial court level, the Virginia Supreme Court ultimately reversed, ruling that the failure of Mr. Zemene’s original attorney to advise him as to the immigration consequences of his plea induced him to accept a plea when he otherwise would have likely gone to trial.

Ineffective Assistance of Counsel and Immigration Law

Ineffective assistance of counsel is one form of legal malpractice. Because it involves a fundamental right protected by the Sixth Amendment (the right to counsel in criminal cases), a guilty plea or a conviction in which ineffective assistance of counsel is alleged is subject to appeal.

In the immigration context, the concept of ineffective assistance of counsel takes on yet more significance. In the 2010 case of Padilla v. Kentucky, the United States Supreme Court held that a criminal lawyer defending a non-citizen has a duty to advise the defendant of the potential immigration consequences of the charges they face and any plea deals offered. Where such advice is not given, and where the defendant is prejudiced by it, the conviction or guilty plea may be vacated and the defendant may receive a new trial. A defendant is prejudiced by ineffective assistance of counsel (or other constitutional violations) when there is reason to believe that the case would have turned out differently if the error had not happened.

Contact a Virginia Criminal Defense Attorney

If you are charged with a crime, even a seemingly minor one, you take a huge risk by proceeding without an attorney, or by rolling the dice with a court-appointed attorney who may not have the time to really get to know your case. Our criminal defense attorneys are dedicated to giving you sound advice and to fighting for you when you need it. Our practitioners are knowledgeable in a wide variety of criminal matters, and have experience handling both state and federal prosecutions. While we do not handle immigration court matters, we do take our role as counselors seriously. If you are a criminal defendant who is not a citizen, we will perform due diligence to advise you as to all the potential consequences of whatever courses of action are set before you. A good defense when being accused of a crime initially is the best way to avoid ending up in immigration court to begin with. When your freedom and your very way of life hang in the balance, you can’t afford second rate representation. Hire the Leesburg attorneys at Simms Showers for effective assistance of counsel.

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