Vol. 9, No. 2, Pg. 32. Does failure to advise clients of immigration consequences of guilty pleas constitute Malpractice?.

• Author: By F. Scott Pfeiffer

South Carolina Lawyer

1997.

Vol. 9, No. 2, Pg. 32.

Does failure to advise clients of immigration consequences of guilty pleas constitute Malpractice?

32Does failure to advise clients of immigration consequences of guilty pleas constitute Malpractice?By F. Scott PfeifferI sit at a broken old table inside one of South Carolina's oldest prisons. In front of me is a young black man - apparently an American as far as anyone could tell. He is crying. "I can't go back to Liberia. I don't know anyone there. My family came to America when I was a little boy. They are shooting people in Liberia." He is speaking of a country he does not know.

He is no more familiar with Liberia than I am. But he is a Liberian national. He has been a permanent resident alien (a so-called greencard holder) for 16 years. His father is a factory worker. His mother works at a drycleaner. He speaks only English. His family has never naturalized to become United States citizens, in spite of having been eligible to for 11 years. He never will, now.

Two years ago he got mixed up with a bad crowd in Charleston. He began smoking pot. He has a record of minor offenses. This time, he was caught in possession of three ounces of marijuana. It was enough to make a charge of possession with intent to distribute. "My lawyer said that if I would plead to possession with intent to distribute, the prosecutor would recommend probation" he says, with a disgusted look. "I wasn't selling marijuana. I was a user, not a dealer. But my lawyer told me this was a good deal, so I took it. Now, this."

THE LAW HAS CHANGED

He was given a sentence of three years, suspended on two years probation. It was too much. He will be leaving the United States

33soon, possibly never to return. "I don't know how I'll survive in Monrovia" he says, as we get up to go in to see the judge.

A year ago, he would have been fine. A year ago, persons who had been permanent residents for more than five years and had lived in the United States for more than seven years could get a waiver of deportation and remain in the United States after serving their time, unless they had committed a grievous offense, like murder or terrorism. Not today.

Last year, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132 (AEDPA). In that Act, Congress got tough on immigrant crime. Today, if an immigrant is convicted of an "aggravated felony," he has no ability to stay in the United States. He is not eligible for any waiver of "removal" (the new term for "deportation"), whether for hardship, family unity, length of time in the...