Judge May Vacate Conviction if Lawyer Failed to Inform Client About Immigration Consequences

While undocumented immigrants cannot collect Social Security while living in the United States, though they paid into the system, those living abroad may qualify. (GETTY IMAGES/ISTOCKPHOTO/GETTY IMAGES/ISTOCKPHOTO)

In 1999 I pleaded guilty to a felony fraud charge. My lawyer told me to take a deal where I pleaded guilty and got probation, but he never told me that the conviction could hurt my immigration status. Can I get the case reopened so I can fight the criminal charge?
Richard, New York

A. Maybe. A judge will sometimes vacate a conviction if a person pleaded guilty to a crime without knowing the immigration consequences of the plea. Separate from the ineffective counsel argument, you may have other claims to having the conviction vacated. A criminal law expert can advise you of your options.

Readers should note that for pleas that occurred on or after March 31, 2010, the U.S. Supreme Court has ruled that the failure of an attorney to advise a client of the immigration consequences of a plea is clear grounds for vacating that plea. That case, Padilla vs. Kentucky, does not apply to pleas taken before the Supreme Court’s decision. Some judges will nevertheless vacate a plea taken before the Padilla decision, where an attorney’s failure to properly inform a client results in possible deportation.

Q. Can my deported relative collect his Social Security Retirement benefits? This relative worked in the United States “on the books” for 20 years. During that time, he and his employer contributed to his Social Security retirement account. If he does qualify for benefits, must he get a visa to come to the United States from Peru to apply for them? Given his immigration history, he can’t get a visa.
Alfredo, Miami

A. Your relative may qualify to receive his U.S. Social Security retirement benefits while living in Peru. He need not come to the United States to apply. While undocumented immigrants cannot collect these benefits while living in the United States, though they paid into the system, those living abroad may qualify. It depends on the country abroad’s policies toward providing benefits to U.S. citizens. The best way to find out whether your relative qualifies is to call the Social Security Administration at (800) 772-1213. I have found administration staff very helpful.

By Allan Wernick for DAILY NEWS
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