Skip to main content

Encarnacion Gives New Life to Fixing Erroneous Convictions In Georgia

By November 7, 2014No Comments
In recent decades, America’s immigration laws have changed to more closely resemble criminal ones. There are extreme burdens one must meet to stay in the U.S, regardless of family ties to the country or length of time spent here, and it is even harder to stay in the U.S. with a criminal record.
Due to the extreme nature of our current laws, the Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), decided that criminal defense attorneys must advise their clients on the immigration consequences of their convictions in order to meet the standard of “effective assistance of counsel.” This was a bold move for the Supreme Court; historically, defense attorneys did not have to advise of almost any consequences outside of the direct consequences of a conviction, such as your sentence and its terms.

Immigration law is extremely complex and takes years for attorneys to learn.  As a result, even after the Padilla ruling, not all criminal defense attorneys have been advising their clients correctly and immigrants still plea to crimes without understanding the potential immigration consequences. For years, immigration and criminal defense attorneys have been fighting to reopen the convictions of immigrants not properly advised of the immigration consequences of their convictions.  Yet, Georgia courts were extremely resistant, consistently denying petitions to reopen convictions that they should have granted.

Recently, the Georgia Supreme Court made a decision enforcing Padilla v. Kentucky in Encarnacion v. State, No. S14A0690, slip op. (Ga. September 22, 2014). This decision requires that criminal defense attorneys, regardless of their expertise, advise immigrants as clearly as possible on the actual, real immigration consequences of their pleas and convictions. The Court makes clear, “It is not enough to say ‘maybe’ when the correct advice is ‘almost certainly will.'” Encarnacion, No. S14A0690, at 8.
If you believe you were inaccurately advised as to the immigration consequences of your convictions, please call Anna Erwin at 404-949-8165 so I can help you with your case. I know the laws you need to fix your lives!
Charles Kuck

Managing Partner