Articles Posted in Immigration Law

by
Pursuant to a negotiated plea agreement Defendant pleaded guilty to misdemeanor hit-and-run and driving while intoxicated. The United States Department of Homeland Security subsequently notified Defendant that his temporary protected status would be revoked as a result of his criminal convictions. Defendant sought habeas corpus relief, alleging that his prior counsel had given him erroneous advice about the effect of his plea agreement on his immigration status and that, had he been given accurate information, he would have gone to trial. After an evidentiary hearing, the habeas court ruled in favor of Defendant and granted the writ. The Director of the Virginia Department of Corrections appealed, arguing that the habeas court erred in holding that Defendant satisfied the prejudice prong of Strickland v. Washington. The Supreme Court affirmed, holding that the judgment of the habeas court was not plainly wrong or without evidence to support it. View "Clarke v. Galdamez" on Justia Law

by
Petitioner, a lawful permanent resident of the United States, pled guilty to a single count of grant larceny. Petitioner was subsequently served with a notice to appear for removal proceedings under 8 U.S.C. 1227(a)(2)(A)(i). Petitioner filed a petition for a writ of habeas corpus asserting that her trial counsel had provided ineffective assistance because he failed to advise her of the immigration consequences of her plea. After a hearing, the circuit court denied the petition, finding (1) trial counsel adequately advised Petitioner of the immigration consequences of her guilty plea, and (2) alternatively, Petitioner failed to satisfy the prejudice prong of the ineffective assistance test under Strickland v. Washington because she did not show that she would have pled not guilty and proceeded to trial if she had received competent advice. The Supreme Court affirmed, holding that, on the facts of this case, the performance of Petitioner’s counsel satisfied the constitutional standard of reasonableness. View "Fuentes v. Clarke" on Justia Law

by
Petitioner pleaded guilty in the District Court of Stafford County to petit larceny and three misdemeanor tampering charges. After Petitioner’s sentences expired, Petitioner was detained by U.S. Immigration and Customs Enforcement (ICE) authorities. In a Notice to Appear, the ICE charged that Petitioner was subject to removal because his petit larceny conviction subjected Petitioner to removal pursuant to 8 U.S.C. 1227(a)(2)(A). While in federal custody, Petitioner filed a petition for writ of habeas corpus in the Circuit Court of Stafford County, alleging that he was denied effective assistance of counsel because the attorney representing him in the petit larceny case incorrectly informed him that his guilty plea would not have negative immigration consequences. The circuit court dismissed the petition, concluding that it did not have jurisdiction to hear the petition because Petitioner was not in custody pursuant to the challenge conviction and because the petition was untimely. The Supreme Court affirmed, holding that a Virginia circuit court does not have jurisdiction to provide habeas corpus relief to a petitioner being detained by federal authorities because of immigration issues arising as a consequence of a state conviction after the sentence for the state conviction has expired. View "Escamilla v. Superintendent, Rappahannock Reg’l Jail" on Justia Law

by
Pursuant to a plea agreement, Appellant, a native of Ethiopia, pleaded guilty to petit larceny. At no time did Appellant’s court-appointed attorney advise Appellant of the collateral consequences of the plea and sentence upon his immigration status. Appellant was subsequently informed that he was subject to removal as a result of his conviction. Appellant filed a petition for writ of habeas corpus, alleging that his counsel had rendered ineffective assistance. The circuit court sustained the Commonwealth’s motion to dismiss the petition, concluding that Appellant was not prejudiced from his counsel’s failure to advise him of the adverse consequences on his immigration status of accepting the plea agreement. The Supreme Court reversed, holding that the circuit court applied an incorrect standard for determining whether prejudice resulted from the attorney’s failure to advise Appellant of the negative consequences of accepting the plea agreement. View "Zemene v. Clarke" on Justia Law

by
Su, a citizen of the People's Republic of China, was accepted by the Virginia Commonwealth University (VCU) after attending high school in Minnesota. At the time Su matriculated at VCU, he was classified as an out-of-state student for tuition purposes. Su subsequently sought to change his classification to in-state status and filed an application for in-state tuition benefits. VCU's residency appeals officer denied Su's application, finding that federal law prohibited an F-1 visa holder to establish Virginia domicile. VCU's residency appeals committee denied Su's appeal. The circuit court reversed, holding (1) VCU was incorrect in asserting that Su had no domicile and that he was an V-1 visa holder, rather than a permanent resident, when he matriculated; and (2) Su had established that he was domiciled in Virginia and had abandoned any previous domicile for at least one year prior o the date of entitlement. The Supreme Court reversed, holding that the circuit court erred in reversing VCU's decision denying Su's application for in-state tuition benefits and that VCU's decision could not reasonably be said to be contrary, capricious or otherwise contrary to law. View "Va. Commonwealth Univ. v. Su" on Justia Law