As the number of immigrants continues to increase in Virginia, and more specifically in Henrico County, the need for immigrants to understand the effect of guilty pleas on their immigration status is essential. Many immigrants do not have any experience with the American criminal justice system let alone understand the effects that pleading guilty of a misdemeanor can have on their immigration status.
According to Henrico County DUI Lawyer Michael Kiely, “the nature of a person’s immigration status, when compounded with a criminal charge like a DUI, can become extremely complicated very quickly. Factors such as pending visas and any past criminal records must all be taken into account during these types of cases.”
For an immigrant in Virginia, a guilty plea of a misdemeanor such as a DUI can result in a deportation order. In some cases, a misdemeanor can even prevent a legal permanent resident from becoming a naturalized citizen. Even the Supreme Court has recognized how pleading guilty to a DUI can have a profound financial and emotional impact on a family composed of immigrants and American citizens in the 2010 case Padilla v. Kentucky. In response to these issues and the ruling in Padilla, the Virginia Supreme Court has taken action.
The Effects of Padilla v. Kentucky
In 2010 the Court ruled in Padilla v. Kentucky that if an attorney failed to inform a client about the consequences that a guilty plea could have on a person’s immigration status then the immigrant should be entitled to a new trial. During this same year, prosecutors in Virginia began to waive jail time for certain misdemeanors, which removed the right to have an attorney appointed for them. This led to many immigrants taking pleas that would lead to deportation proceedings, allowing them to avoid one negative consequence for something even worse.
New Warning from Trial Judges in Virginia Cases
As of October 30, trial judges in Virginia have been directed by the Virginia Supreme court to warn non-citizens of the impact that a misdemeanor conviction, including a DUI, could have on their status within the United States. The Virginia Supreme Court amended a rule for trial judges that advises them to ask each immigrant if they understand the consequences associated with a guilty plea—including deportation, denial of naturalization and even exclusion of admission into the US.
Critics claim that such a warning at this late stage of the case is insufficient, as defendants are unlikely to act on this warning and demand delays in the case and a consultation with an attorney.
