In Ohio, citizens accused of criminal acts can sometimes enter a guilty plea in order to be admitted to a diversion program. These programs focus on education, addiction treatment, and intervention and, in most cases, allow the accused to avoid incarceration. When they complete the program, the criminal charge becomes sealed and the guilty plea is stricken from the record.
Non-citizens, however, can find themselves in a particular dilemma when they want or need to be admitted to a diversion program. Many of them are strong candidates for this treatment, but their entrance of a guilty plea can automatically trigger the deportation process. Attorney Eric Nemecek recently confronted this dilemma in his article "From Diversion to Deportation" for Attorney At Law Magazine.
Different Definitions of "Guilty"
Attorney Nemecek pinpoints the cause of this quandary for non-citizens: a discrepancy between Ohio's definition of "guilty" and the Department of Immigration and Naturalization Services' definition. When diversion program eligibility is in play for the accused in Ohio, the state, essentially, does not consider the guilty plea a formal conviction. This is because the accused still has the opportunity to complete the program, invest in their well-being and future, and negate the guilty plea.
However, for the Department of Immigration and Naturalization Services, there is no such distinction. Simply put, guilty is guilty. So when these guilty pleas are entered, they can start the process of deporting the non-citizen—even when the state of Ohio does not necessarily consider the plea equivalent to an actual conviction.
What can be done?
As Attorney Nemecek outlines, there are measures that can be taken to avoid this trap and stay the deportation process. If the non-citizen has already been entered into the diversion program, then he or she's counsel can petition to withdraw the guilty plea. It can be argued that the guilty plea was not "knowingly, voluntarily and/or intelligently entered," in relation to the deportation consequences. This can be put forth on the grounds provided by R.C. § 2943.031.
For non-immigrant defendants who have not yet entered a plea, Attorney Nemecek recommends that they work with both their Ohio criminal defense attorney and an immigration attorney to proceed. This dual-disciplined approach can not only give the client a thorough view of their circumstances and options, but also allow defense counsel to approach the court with specific concerns about the defendant's diversion program eligibility and overall future.
You can read "From Diversion to Deportation" by Attorney Eric Nemecek in its entirety on the Attorney at Law Magazine site.
If you or a loved one is facing a criminal charge, then we invite you to contact us at Friedman & Nemecek, L.C.C. today. Our principal attorneys are renowned and sought-after litigators who have built their reputation on staunch, effective defense even in the face of the most serious allegations.
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