By Farhad Sethna, Attorney, © 2013
In the case of Sewdat Rajpaul, the Board of Immigration Appeals (BIA) held on August 15, 2013 that it would reopen its prior final decision due to the alien having proved that his underlying conviction had been withdrawn and he was able to plead to a lesser offense.
Mr. Rajpaul was originally convicted of attempted assault in the second degree in New York State. He was then placed in removal proceedings and found removable by both the Immigration Court and subsequently the BIA affirmed the removal decision on October 21, 2011. Thereafter, Mr. Rajpaul filed a motion to reopen his removal case on May 29, 2013.
Mr. Rajpaul asserted that he had made a claim of ineffective assistance of counsel under the Padilla v. Kentucky case (559 U.S. 356 (2010)). Other articles on the Padilla case and its successor, Chaidez v. U.S can also be found on this blog.
The New York state court ordered a “Padilla” hearing. At that hearing, the court found that Mr. Rajpaul was indeed able to prove that he was prejudiced due to the ineffective assistance of counsel and consequently pled guilty to the charge of attempted assault. The state court then vacated the assault conviction and accepted the guilty plea to the reduced charge of Menacing in the Third Degree.
Mr. Rajpaul submitted the New York state court’s order finding ineffective assistance of counsel to the BIA. Mr. Rajpaul also submitted the hearing transcript of the new plea agreement which proved that he had been permitted to withdraw his earlier plea and enter into a new, reduced plea.
Even though Mr. Rajpaul’s motion to reopen was untimely (it was filed well beyond the deadline for filing motions to reopen), the Board reopened the proceedings on its own motion. Therefore, the Board directed the case back to the Immigration Judge for further consideration of Mr. Rajpaul’s removability from the United States in light of the amended conviction and any eligibility for relief from removal.
In conclusion, this case demonstrates how a respondent may successfully reopen his or her prior underlying conviction due to the ineffective assistance of counsel and thereafter present that claim to the Board of Immigration Appeals. However, it should be noted that Mr. Rajpaul’s case is somewhat of an anomaly because he was permitted to remain in the United States for almost two years (October 21, 2011 to August 15, 2013) even though a final order of removal had been entered against him. Other respondents may not find themselves quite as fortunate, and may be removed from the United States within thirty or sixty days of the final BIA order.
Another lesson to be learned from this case is that criminal defense counsel must educate themselves on the immigration consequences of a criminal conviction before advising their non-citizen client to accept a guilty plea.
Copyright Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.