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When a conviction is a ticket home

Mistakenly telling a client that his criminal conviction won’t force his departure from U.S. shores can let the client overturn the conviction, as a new federal case illustrates.

Alexandria Senior U.S. District Judge T.S. Ellis III granted a Pakistani citizen’s § 2255 motion to vacate his conviction of operating an illegal gambling business in violation of 18 U.S.C. § 1955. Ellis was sitting in the Western District of North Carolina when he decided Alam v. U.S. on June 23, but his opinon draws on 4th Circuit cases, including unpublished opinions and decisions of other district courts within the circuit.

The sparse case law in Virginia appears to make post-conviction relief dependent on whether a lawyer has made affirmative misrepresentations about the immigration consequences of a criminal conviction, or merely kept mum.

In the North Carolina case, Imran Alam worried that a guilty plea would forfeit his permanent legal resident status. His lawyer said “several” immigration attorneys he contacted told him § 1955 was not an aggravated felony, information he relayed to his client. The lawyer advised Alam that a conviction would not lead to removal from the country. During a Rule 11 colloquy before a magistrate judge, immigration consequences were not addressed.

However, before sentencing, an immigration lawyer contacted the criminal lawyer to alert him that in fact a § 1955 conviction would trigger immediate removal upon conviction, and to suggest that counsel move to withdraw the guilty plea. The lawyer met with Alam to say his previous advice was wrong, but specifically advised Alam not to withdraw his plea because it would affect Alam’s participation as witness in a public corruption trial against a former county sheriff whom Alam said he bribed to keep his gambling operation open.

Alam readily proved constitutionally ineffective assistance of counsel, according to Ellis’s opinion.

The lawyer’s advice on immigration was “grossly inaccurate,” Ellis said, and it was compounded by his later advice to leave the plea alone, based on the lawyer’s assumption that he could persuade the government to exercise its non-existent discretion not to pursue deportation.

By Deborah Elkins

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