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Immigration Malpractice

Fairfax Injury Lawyer Brien Roche Addresses Immigration Malpractice

Brien Roche

Legal malpractice in immigration issues is not exactly a hot topic. However a U. S. Supreme Court case has stated that aliens charged with a crime must be advised of immigration consequences. In Padilla v. Kentucky the Court wrote that defense counsel must advise the client of whether a plea of guilty carries a risk of being deported.  In Padilla the defendant had been in the country legally for nearly 40 years. He was advised by his lawyer that he did not have to worry about being deported. As a result he pled guilty to smuggling marijuana.  This was bad advice.

Immigration Malpractice-21 Day Rule

When this happens in Virginia the defendant may be confronted with the 21 day rule. In Virginia attempts to reopen cases are tough. Virginia has what is known as a 21 day rule. After 21 days the trial court loses the right to amend a final order. As a result attempts to change the sentence so as to prevent the person from being deported are tough. 21 days, after the entry of a final judgment, the trial court loses any basis to amend that judgment.

People with green cards are subject to being deported if they commit a felony or misdemeanor that results in a year or more of prison time.  In addition, crimes of moral turpitude may result in being deported. These are crimes that involve fraud or theft. Also crimes involving guns, drugs or domestic abuse may be grounds for being deported.

This risk needs to be closely looked at. The client must fully accept the results of a plea of guilty. Also she must be made aware of what impact it may have on her right to stay in this country. Call, or contact us for a free consult.

Proving Damages

When immigration malpractice does exist proving damages may be difficult.  The damages include the fact the client cannot stay in the U.S.  However if in fact a person had no legal right to remain here to begin with then the defense will argue that there are no real damages.  The counter to that is that the person did have a right to remain here until the lawyer’s bad advice. This bad advice triggered the issue of being deported.

The damages may also include fees to the lawyer and the further legal fees because of the lawyer’s fault. In addition there may be the loss of family contacts because of being deported. In addition there may be loss of income.  However what cannot be claimed is the emotional upset associated with being deported.
If wage losses are claimed that may be tough to prove if there is not proper reporting of income to the IRS. Also if state or local licenses or permits were required then that must be looked at.

Immigration Status in Personal Injury Matters

Immigration status of plaintiffs is sometimes an issue in personal injury actions. A number of courts have addressed this issue over the years.  If it does tend to prove or disprove an issue in the case, then immigration status may be relevant. In addition the court must also look at whether the facts alleged will be unfair to any party or confusing to the jury. Some courts that have dealt with this issue of immigration status have ruled that not only is it not relevant but it is also highly prejudicial. Therefore it should not come into evidence. That means it should not presented to a jury.
The Virginia Supreme Court in the case of Peterson v. Neme, 222 Va. 477 (1981) stated that an alien who is excluded by U.S. law  from the job market could still recover wage losses as an element of damages. This was the case even though he was working in violation of law. A U.S. court in Virginia in the case of Romero v. Boyd Bros, Transp. Co. in 1994 stated the danger of a jury denying relief to a plaintiff based upon  status outweighs  the proof value of the fact that he entered the country against the law.

Immigration Malpractice-Contact Us

For information about other forms of legal malpractice aside from immigration malpractice see the other pages on this site and see the pages on Wikipedia. Call, or contact us for a free consult.

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Immigration Malpractice

Fairfax Injury Lawyer Brien Roche Addresses Immigration Malpractice

Brien Roche

Legal malpractice in immigration issues is not exactly a hot topic. However a U. S. Supreme Court case has stated that aliens charged with a crime must be advised of immigration consequences. In Padilla v. Kentucky the Court wrote that defense counsel must advise the client of whether a plea of guilty carries a risk of being deported.  In Padilla the defendant had been in the country legally for nearly 40 years. He was advised by his lawyer that he did not have to worry about being deported. As a result he pled guilty to smuggling marijuana.  This was bad advice.

Immigration Malpractice-21 Day Rule

When this happens in Virginia the defendant may be confronted with the 21 day rule. In Virginia attempts to reopen cases are tough. Virginia has what is known as a 21 day rule. After 21 days the trial court loses the right to amend a final order. As a result attempts to change the sentence so as to prevent the person from being deported are tough. 21 days, after the entry of a final judgment, the trial court loses any basis to amend that judgment.

People with green cards are subject to being deported if they commit a felony or misdemeanor that results in a year or more of prison time.  In addition, crimes of moral turpitude may result in being deported. These are crimes that involve fraud or theft. Also crimes involving guns, drugs or domestic abuse may be grounds for being deported.

This risk needs to be closely looked at. The client must fully accept the results of a plea of guilty. Also she must be made aware of what impact it may have on her right to stay in this country. Call, or contact us for a free consult.

Proving Damages

When immigration malpractice does exist proving damages may be difficult.  The damages include the fact the client cannot stay in the U.S.  However if in fact a person had no legal right to remain here to begin with then the defense will argue that there are no real damages.  The counter to that is that the person did have a right to remain here until the lawyer’s bad advice. This bad advice triggered the issue of being deported.

The damages may also include fees to the lawyer and the further legal fees because of the lawyer’s fault. In addition there may be the loss of family contacts because of being deported. In addition there may be loss of income.  However what cannot be claimed is the emotional upset associated with being deported.
If wage losses are claimed that may be tough to prove if there is not proper reporting of income to the IRS. Also if state or local licenses or permits were required then that must be looked at.

Immigration Status in Personal Injury Matters

Immigration status of plaintiffs is sometimes an issue in personal injury actions. A number of courts have addressed this issue over the years.  If it does tend to prove or disprove an issue in the case, then immigration status may be relevant. In addition the court must also look at whether the facts alleged will be unfair to any party or confusing to the jury. Some courts that have dealt with this issue of immigration status have ruled that not only is it not relevant but it is also highly prejudicial. Therefore it should not come into evidence. That means it should not presented to a jury.
The Virginia Supreme Court in the case of Peterson v. Neme, 222 Va. 477 (1981) stated that an alien who is excluded by U.S. law  from the job market could still recover wage losses as an element of damages. This was the case even though he was working in violation of law. A U.S. court in Virginia in the case of Romero v. Boyd Bros, Transp. Co. in 1994 stated the danger of a jury denying relief to a plaintiff based upon  status outweighs  the proof value of the fact that he entered the country against the law.

Immigration Malpractice-Contact Us

For information about other forms of legal malpractice aside from immigration malpractice see the other pages on this site and see the pages on Wikipedia. Call, or contact us for a free consult.

Contact Us For A Free Consultation

Contact Us For A Free Consultation