NASHVILLE (AP) – The Tennessee Supreme Court issued a decision Friday that could be a blow to immigrants who were never told that they can still be deported for a crime that has been wiped off their criminal record.
The case exposes a rift between the federal law and state law when it comes to criminal records that have been expunged, immigrant advocates said.
Friday's unanimous state Supreme Court decision resulted in the court's refusal to re-open up a case involving an immigrant who pleaded guilty to patronizing a prostitute in exchange for getting his conviction for the misdemeanor expunged.
The decision closes an avenue for immigrants to be able to correct bad legal advice they've gotten in the past, said Tricia Herzfeld, an attorney with the Ozment Law firm, which filed a brief in the case on behalf of the National Immigration Project.
An immigrant can have a criminal record expunged by a Tennessee court, but that conviction can still be used later by a federal court considering whether to deport someone, Herzfeld said. Many criminal defense attorneys are ignorant of immigration law and are failing to warn their clients that if they plead guilty to a crime and that conviction is later expunged it can still be used against them for immigration purposes.
Most people who have their records wiped clean are generally convicted of petty crimes, such as vandalism and theft, but those could have disastrous consequences later in an immigration court, Herzfeld said.
"Stuff that seems really minor could have really significant immigration consequences," she said. "It could mean the difference between deportation or not."
The case involves a Mexican national who pleaded guilty in a Nashville court in 2007 to the misdemeanor charge of patronizing a prostitute. In exchange for the guilty plea, Jose Rodriguez was allowed to have the record expunged as long as he complied with all orders of the court.
In 2010, the United States Supreme Court said that the Constitution requires that defense attorneys inform their clients who are non-citizens that a guilty plea could have potential consequences with someone's immigration status. Rodriguez went back to court in 2010 and asked to take back the guilty plea, arguing that nobody told him that the expunged record could still have immigration consequences.
A trial court said Rodriguez waited too long to ask to open back up the case. The Tennessee Court of Criminal Appeals agreed that Rodriguez was time-barred from re-opening his case, but the court also said the case couldn't be re-opened because it was expunged.
The Tennessee Supreme Court said Friday that Rodriguez could not open up the old case, because as far as the state is concerned there's no record of any conviction to even challenge because it was expunged from his record.
An immigration judge is now considering whether to deport Rodriguez, and his guilty plea to patronizing the prostitute will be considered, Nashville immigration lawyer Sean Lewis said. Rodriguez has been here for at least a decade, he said.
"He's married to a U.S. citizen," Lewis said of Rodriguez. "He's been here long enough that he really is Americanized, and I don't think if he goes to Mexico he's going to do well. They're going to look at him as a watered-down Mexican."
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