Excerpted From: Samanda Rodriguez, Post-conviction Relief and Expungement Petitions--does Either Option Provide Relief for Undocumented People from Being Deported?, 22 Appalachian Journal of Law 1 (2023) (137 Footnotes) (Full Document)


00NoPictureApproximately “70 million people in the United States have a criminal record.” In the United States, the total “foreign-born population (documented and undocumented) hit 47 million in April of 2022.” In the Fiscal Year of 2020, Enforcement and Removal Operations (“ERO”) of the U.S. Immigration and Customs Enforcement (ICE) conducted 103,603 administrative arrests where 90 percent of those arrests had criminal convictions or pending criminal charges at the time of the arrest.” Altogether there were more than “374,000 criminal convictions and pending charges, and ICE ERO enforcement activities resulted in 4,360 criminal arrests, 4,479 charges, and 5,397 convictions.” As of late 2022, “ICE held 30,001 in ICE detention and out of 30,001 people 69.1% of them had no criminal record.”

In 2017, a post-conviction relief petition was filed on behalf of J.G., an undocumented woman charged with endangering the welfare of her grandson; C.L. J.G. entered her plea of guilty after being in police custody for over a month. Shortly after her guilty plea, she was sentenced to three years of probation, with credit for time served of 134 days. J.G. pled guilty because it was her first and only time in jail, and she was a caregiver to her ill father. Absence from her caregiving duties caused a great deal of hardship, so pleading guilty allowed J.G. to expedite her release and take advantage of her noncustodial plea offer. However, when J.G. made her plea, she was under the impression from her attorney that if she did not plead guilty, she was going to spend an exceeding amount of time in jail with or without a trial because she was also being held on an immigration detainer. Given the circumstances, J.G.'s guilty plea was taken under duress. Nevertheless, years later, she sought counsel to file a post-conviction relief petition because she faced the possibility of deportation. After much work from her attorney, the Somerset County Superior Court granted J.G.'s post-conviction relief petition.

Stories like J.G. are common. Presidential administrations, from Ronald Reagan's to Joe Biden's, have removed numerous people who have committed a crime and were not legal. Any United States citizen convicted of committing a crime can get an expungement or file a petition for post-conviction relief. Whether these options are available to alleviate the hardships of a criminal record depends on the crime an individual was charged with. Undocumented people have more obstacles to relieving themselves of criminal convictions.

Some of those obstacles include gaining employment, limited housing access, and other difficulties in obtaining basic needs and services. Despite those efforts to take legal action, undocumented people will still face detainment with ICE and potential deportation. In pursuit of their objectives, legal institutions have weighed in on the issue. Congress and courts around the country have attempted to use legal means to resolve immigration issues concerning criminal convictions. As a result, “non-citizens may still face deportation for a ‘conviction’ under federal immigration law even if under state or federal criminal law they have avoided the conviction by pleading no contest or entering into deferred adjudication program.” On January 25, 2017, “President Donald Trump signed an executive order called ‘enhancing public safety in the interior of the United States' which expanded immigration enforcement priorities and called for a dramatic increase in the administration's new priorities.” Some of these priorities included “people who have ‘been convicted of any criminal offense,’ people charged with but not yet convicted of any crime, and anyone who has ‘committed acts that constitute a chargeable offense.”’ Cleaning a record is possible for immigrants, although some limitations are presented. This article reviews the legal history regarding the nexus of crimes and deportation, how it started, and where we are today. This article also compares post-conviction relief petitions and expungements to explore which conviction relief process is better, if any, by exploring cases and the conviction relief processes.

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Immigrants who are convicted of crimes have more consequences than just a criminal record. The modern deportation system “subjects millions of long-term non-citizens to detention and removal, with little opportunity for formal consideration of whether these severe sanctions are justified in individual cases.” Since the enactment of IIRIRA, numerous people have submitted petitions hoping to delay deportation. Unfortunately, any guilty plea by a non-citizen criminal defendant--even a first-time offender--lends to the dead end of deportation. Many of the cases mentioned illustrate that courts are unwilling to depart from the language and interpretation of conviction outlined in the IIRIRA. Judicial and legislative changes that safeguard undocumented individuals would benefit the judicial system by reducing the number of post-conviction and expungement petitioners. Unchanged, non- citizen criminal defendants are simply not free from the particular risk of unfairness that the Supreme Court addressed in Padilla. By ignoring this problem, the justice system hurts people and makes its job harder.

J.D. Candidate, May 2023, Appalachian School of Law.