Many criminal convictions carry severe consequences for non-citizens. These range from not being able to adjust status to mandatory detention and removal from the U.S. The problem for non-citizens with a criminal history is compounded by the fact that the federal definition of what a conviction is sweeps much broader than the definition in Minnesota and other states. The Immigration and Nationality Act (“INA”) defines a conviction as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:
- a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and,
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
INA § 101(a)(48)(A). Entering a guilty plea or even simply admitting the facts, which is often required for state pre-trial or diversion programs, is enough for a conviction under the INA even if the guilty plea is later withdrawn after completing the program, and even if a judge has never pronounced a sentence. Similarly, expunged court records—those that have been sealed by a judge—still count as convictions under the INA.
Minnesota provides a way to permanently vacate a conviction through so-called post-conviction relief. If a person can show that the conviction violated their rights under the Constitution or under federal or state laws—or if there is new scientific evidence that establishes their innocence—a person can move to have the conviction vacated. If a court grants relief, the conviction is removed even as far as the INA is concerned. But post-conviction relief is far from a silver bullet. With some exceptions, a petition to have the conviction vacated cannot be filed more than two years after the original conviction.
Even more troubling, some INA convictions are outside of the realm of post-conviction relief for the simple reason that state law does not recognize them as convictions. One example is a stay of adjudication. After a guilty plea, the court withholds adjudicating the person’s guilt. If the defendant complete certain conditions, such as community service or restitution, the charge is dismissed, and they do not have a conviction on their record. That is, as far as Minnesota state law is concerned. The guilty plea still counts as a conviction under the INA, however. What about post-conviction relief? Unfortunately, this remedy is not available. In Johnson v. State, the Minnesota Supreme Court last year held that “[n]othing in [the postconviction relief statute] suggests that the definition of ‘conviction’ for postconviction relief includes instances when a person has a conviction for purposes of federal immigration law, but not state law.” 955 N.W.2d 908, 912 (Minn. 2021). A non-citizen who was granted a stay of adjudication is, in other words, out of luck. No Minnesota conviction, no Minnesota relief.
Such was the situation until recently. Non-citizens with stays of adjudication found themselves in a box. State law did not consider this outcome a conviction and provided no avenue for relief. At the same time, federal law took the opposite view and imposed immigration consequences.
A recent Minnesota Court of Appeals decision has opened a door for non-citizens with a criminal record that does not quality for post-conviction relief because Minnesota does not recognize the disposition as a conviction. This decision may also allow a person to get around the two-year time restriction normally imposed on such cases. The Court drew a distinction between post-conviction relief, subject to all the limitations discussed, and a motion to withdraw a guilty plea under the Minnesota Rules of Criminal Procedure 15.05.
The defendant in Mohamed v. State pled guilty to a felony possession charge in 2013. The court accepted the plea and stayed adjudication while the defendant was placed on probation. No. A20-1226, 2021 WL 3277222, at *1–2 (Minn. Ct. App. Aug. 2, 2021). He successfully completed probation and was never adjudicated guilty. In 2019, he realized that his guilty plea would still make him deportable even though he did not even have a conviction as far as Minnesota courts were concerned. He moved to withdraw the plea and to schedule an evidentiary hearing. The district court construed his request as a motion for post-conviction relief and summarily denied it. Johnson governed. End of story. No Minnesota conviction, no Minnesota relief. The defendant appealed and, in a surprising twist, the appellate court reversed. It found that “a motion to withdraw a guilty plea should not be construed as a petition for post-conviction relief when the defendant has been neither convicted not sentenced.” Instead, the defendant could move to withdraw his guilty plea. Id at 4.
Not only does this holding suggest a way to escape the Catch 22 of having a Minnesota “conviction” that is only a conviction as far as the immigration laws are concerned and is beyond the reach of state courts; it also suggests that the two-year bar may no longer apply. The Minnesota Rules of Criminal Procedure only require that the move to withdraw a guilty plea is “timely,” which is not defined. Instead, courts have found this to be more of a discretionary factor, and that a period of three years “is not untimely as a matter of law.” James v. State, 699 N.W.2d 723, 728 (Minn. 2005).
The caveat? The appellate court opinion is nonprecedential, which means that it is not yet binding on other courts in Minnesota. It, however, open the door to an avenue that has been overlooked. If you received a stay of adjudication, and if you can show that there was a constitutional flaw with the plea such as not understanding it, a motion to withdraw consistent with James is worth evaluation.
If you have questions, please call our office at 612-436-7100 to schedule a consultation with an attorney. There might be a way out of this no-man’s land between state and federal laws.