Our client, a Salvadoran male, had been living in the U.S. since 1992. In 2001 he qualified for, and received, a grant of Temporary Protected Status (“T.P.S.”). In 2009, he was arrested for a serious felony. His defense attorney had him pleadguilty to a lesser felony, and obtained a sentence of probation, but failed to warn his client that by pleading guilty to a felony, he would lose his T.P.S.. His defense attorney wasn’t familiar with immigration law: he had no idea a conviction for a felony would automatically cost his client his T.P.S..
When our client came to us, he was desperate. His T.P.S. renewal had been denied, due to his felony conviction, and he’d lost his work permit. He feared being deported and separated from his wife and children.
Our C.P.L. Sec. 440.10 motion to vacate our client’s felony conviction, was granted, based upon the ineffective assistance of his former defense attorney. Ultimately, we were able to negotiate a plea to a misdemeanor, and in exchange, our client agreed to serve sixty days in jail. For our client, it was far more important to protect his legal status, and avoid being deported, than it was to serve a short time in jail. Non-citizens have a Constitutional right to be informed of the direct immigration consequences of a proposed guilty plea. They have the right to make an informed decision whether to accept a plea bargain; to request an alternate, non-deportable plea; or to accept the risks of trial, if necessary, to avoid being deported.