Many criminal convictions, and some not serious, render a non-citizen ineligible for any benefit or relief under the Immigration Act, making re-opening the criminal case necessary. It has been our experience that non-citizens have improperly pled guilty to removable offenses without first obtaining the advice of a knowledgeable immigration deportation lawyer. As a result, it may be necessary to file either a “post-conviction” petition or motion to vacate the plea in the criminal proceedings. The most prevalent reason for vacating a conviction, whether by plea or after trial, is that the criminal defense attorney rendered ineffective assistance of counsel, for example, by rendering bad advice or failing to obtain crucial evidence.
Under Illinois law, a defendant usually must file the post-conviction petition within the time that the defendant is incarcerated, on probation, or on supervision. If the defendant is outside of these time periods, then the post-conviction petition will likely be dismissed. There are, however, exceptions and, therefore, cases of this importance should be evaluated by us on a case-by-case basis to determine if there is an exception in the event that these time periods have expired.
Defendants are permitted to vacate their convictions but, it should be emphasized, only in the most extenuating circumstances. If a defendant is fortunate enough to vacate a conviction, it enables the defendant to withdraw his or her plea of guilty, thus placing the defendant at the place in time before accepting the plea of guilty. The defendant usually must thereafter stand trial for the offense after vacating the plea. The very important thing to understand is that courts strongly resist re-visiting a previously made judgment of guilt. Consequently, there are presumptions against a defendant that he or she has a good reason to vacate a plea and re-open a criminal case. Therefore, the reason for reopening a criminal case must be of constitutional importance.
At Chicago Immigration Advocates, we have encountered many instances in which clients have been persuaded, improperly, to plea guilty to a case by their criminal defense attorney. In only rare instances, however, should a non-citizen plea guilty to a criminal offense, especially if he or she is uncertain whether it will result in deportation. In many instances, we have recommended a plea of guilty to our clients, but a plea should not be entered without consulting with an experienced immigration attorney. At Chicago Immigration Advocates, we frequently conduct legal research and render written opinions concerning whether a non-citizen should plea guilty to a criminal offense.