A failure to advise

A Fairfax County judge has overturned a woman’s shoplifting conviction in a decision that highlights a defense lawyer’s obligation to understand the immigration consequences of a criminal plea deal.

As a result of an ill-advised plea agreement, a one-time lawful resident faced possible removal proceedings that could separate her from her 8-year-old child. Circuit Judge Stephen C. Shannon vacated the petit larceny conviction, concluding the defense attorney provided constitutionally ineffective assistance.

The problem was the mother’s 12-month suspended sentence. A sentence of more than six months exceeded the threshold for a petty offense exception under immigration law, regardless of whether the jail time was suspended or imposed, Shannon said.

The lawyer from the public defender’s office had access to an immigration specialist to avoid such missteps, but did not consult with the specialist, Shannon said.

Shannon’s decision is Jurado-Alcantara v. Kincaid (VLW 019-8-096).

Plea deal

Yenifer Jurado-Alcantara came to the U.S. from her native El Salvador in 2008, Shannon’s opinion related. She became a lawful permanent resident of the U.S. – a “green card” holder – in 2015.

She cared for her 8-year-old daughter who was born in the U.S. and is a U.S. citizen, the judge said. Her primary language is Spanish.

She was charged on Dec. 10, 2017, with three felony larceny offenses and three misdemeanor larceny charges, apparently from alleged shoplifting at Springfield Mall.

While the charges were pending, Jurado-Alcantara left the U.S. to visit her ailing father in El Salvador. Arriving back in the states on Jan. 30, 2018, she was detained at Dulles Airport. Rather than being granted re-admission as a returning resident, she was paroled for a deferred inspection, allowing her to remain in the U.S. until her criminal case was resolved.

With a general district hearing pending, Jurado-Alcantara met with her trial counsel. He knew of her green card status and her detention at the airport over an immigration issue, Shannon said. Jurado-Alcantara told the lawyer she did not want to go to jail. The lawyer told her the charges were serious and she probably could not stay in the country if convicted as charged.

But the lawyer never questioned Jurado-Alcantara if she would be willing to propose some period of active jail time to avoid or reduce the risk of adverse immigration consequences, Shannon said.

On Feb. 26, 2018, Jurado-Alcantara accepted a plea deal for one misdemeanor petit larceny conviction with the remaining five charges nolle prossed. The agreement called for a suspended 12-month sentence, a $1,000 fine and an order to stay away from Springfield Mall.

“Trial counsel recommended that Petitioner accept this plea agreement in his mistaken belief that it carried no adverse immigration consequences,” Shannon wrote. While he sought a suspended jail sentence of just 180 days, trial counsel did not have a specific discussion with the prosecutor about the immigration consequences, the judge said.

Jurado-Alcantara testified she would not have accepted the plea deal if she had been advised of the adverse immigration consequences, Shannon said. The defense lawyer had access to an immigration consultant through the public defender’s office, but did not speak with that person, Shannon said.

Consequences

On March 20, 2018, Jurado-Alcantara was noticed to appear for removal proceedings. The notice indicated she was subject to removal proceedings because of the petit larceny conviction, a crime of moral turpitude.

Jurado-Alcantara petitioned for a writ of habeas corpus on Jan. 25. After a hearing, Shannon concluded she had proven that her lawyer’s performance fell below an objective standard of reasonableness. She also had shown she accepted the plea deal without knowing the consequences.

The immigration statute was clear that the plea agreement made Jurado-Alcantara inadmissible, Shannon said. A crime of moral turpitude makes non-citizens inadmissible, but a petty offense exception exists for a first-time conviction if the maximum sentence does not exceed one year and the actual sentence imposed is not more than six months.

“Trial counsel never discussed with Petitioner the impact of the plea agreement on her immigration status, and he never advised her to consult with an immigration specialist,” Shannon wrote. “Additionally, while trial counsel tried to negotiate a reduced period for the suspended sentence, the record does not disclose that he explained to the prosecutor that entry of a plea and a finding of guilty, coupled with the contemplated suspended jail sentence, would make Petitioner inadmissible.

Shannon cited two Supreme Court of Virginia cases as instructive on the law of immigration consequences.

He said Jurado-Alcantara was credible when she said she would have been willing to serve an active jail sentence to avoid the risk of being considered inadmissible. If removed, Jurado-Alcantara either would have to leave behind her child, a U.S. citizen, or move the child from her home country to El Salvador.

Jurado-Alcantara was represented in her habeas petition by Barry A. Schneiderman of Fairfax. The habeas respondent – the county sheriff – was represented by John C. Johnson of Roanoke. Both lawyers agreed the case is a lesson for defense counsel when there are immigration issues.

Lawyers familiar with the case said a touchstone is the 2015 Virginia Supreme Court ruling in Zemene v. Clarke (VLW 015-6-017). The justices ruled a habeas petition was sufficient to show ineffective assistance when evidence demonstrated the petitioner would have sought another plea agreement or tried the case if he had known about the immigration consequences.

“In light of Zemene, a criminal defense practitioner needs to be aware of all immigration consequences or seek competent advice,” Johnson said. “Not every practitioner can be an expert, but they need to recognize the possibilities.”

Schneiderman said he does both immigration law and criminal defense.

“I’ve had many clients I’ve flat out told – ‘You need to go to jail to avoid a loss of a green card,’” he said. “They’ve all taken my advice,”

As for Jurado-Alcantara, “She was never really given the clear advice to take a jail sentence,” Schneiderman added.

The Capital Area Immigrants’ Rights Coalition maintains legal resources on its website – caircoalition.org – that include consequences of selected Virginia criminal offenses and a general reference guide on immigration consequences.