Expungement law in Tennessee

A “Conviction” is a Permanent Blemish to the Foreign-Born Population Which May Never Be Erased
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April 4, 2014
By Sean Lewis, Immigration Attorney
Music City Visa
Nashville, Tennessee USA
(615) 226-4236
Sean@MusicCityVisa.com

On April 4, 2014, the Tennessee Supreme Court held that a guilty plea following expunction is not a “conviction subject to collateral review” under the Tennessee Post-Conviction Procedure Act. For those who do not habla legalese, the high court basically said that you cannot undo a guilty plea that involves a sentence that was never formally “entered” by the court clerk.

Still confused? Read on!

The opinion in Jose Rodriquez v. State of Tennessee provides zero guidance as to what the underlying issue in the case was or the circumstances of the appellant. The appellant, a long-term Mexican immigrant who is married to a U.S. citizen was not advised by his criminal lawyer that expungement following judicial diversion would cause dire immigration consequences. After completing probation, Mr. Rodriguez expunged his record and was placed into deportation proceedings. The U.S. Supreme Court has said that criminal defense attorneys must advise foreign nationals of deportation consequences before advising their clients to plead guilty. Tennessee judges must also warn litigants of the same possibility before accepting pleas of guilty.

The Rodriguez decision makes absolutely no mention of the conflict between federal immigration and state law that caused the Court to consider the case in the first place. The decision neither resolves nor reveals the nature of the legal quagmire faced by non-citizens (or their defense attorneys) when they go to criminal court. Given the complexity of the legal issue, the Court side-steps citing the legislature’s “clear and unambiguous” statutory language. But what about the unclear state of the law involved in this case?

Lights of the Soul
The Metaphysical Aspects of “convictions” and “Convictions”

To understand the ambiguity that underlies the law, one might begin to feel that she is back in college studying existentialism or metaphysics. Remember Immanuel Kant’s ontology and epistemology?

Under federal immigration law a “Conviction” (large letter “C”) exists, regardless of expungement where a non-citizen admits guilt and pays some sort of a price for it, regardless of whether a criminal court judge defers adjudication and later throws out the charges.

Under state law, a “conviction” (small letter “c”) is not a conviction where the imposition of the sentence is deferred and not formally entered following the performance of certain conditions. The Tennessee Supreme Court found that no “judgment of conviction” occurs in this instance. In other words, a defendant may plead guilty to a crime, the judge will sign the order finding guilt but later “rip up” the conviction upon the completion of a period of probation. This is judicial diversion. The defendant may then literally set fire to the records in the form of applying for “expungement” and then tell all future employers that he has never been “convicted” of any crime. Again, small letter “c” as in not a “Conviction” (capital “C”).

If the defendant is a non-citizen, for example a legal permanent resident with U.S. Citizen children, spouse and decades of residency, she will be told by the immigration judge that she was Convicted. In other words, she is “Convicted” (large “C”) for immigration purposes but not so for state law purposes. The punishment that follows a Conviction in this sense is usually severe: banishment, exile possibly leading to persecution or death. For many people, the punishment of deportation far exceeds any time spent in jail. Sadly, far too many defense attorneys are unaware of or seem to shrug off the consequences that await their clients after their 5 minutes in General Sessions court speaking to the DA and judge.

Today’s decision certainly falls short of a legal “Copernican Revolution” and leaves it to the other states to sort out a very slippery issue facing the defense bar and immigrants. Certainly today’s decision was a disappointment to the immigration and defense bar.

A “Conviction” is a permanent blemish to the foreign-born population which may never be erased. Under federal law, there is no such thing as an expunged record and pleading guilty under Tennessee judicial “diversion” upon the legal advice of a bad lawyer can get you deported.
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© 2014 Sean Lewis, Esq.

Reconition of Same-Sex Marriage is the Subject of Litigation

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How Same Sex Marriages Are Recognized or Ignored in Other States is the Subject of International Litigation
By Sean Lewis, Esq.

When states in both the U.S. and in Mexico treat same-sex marriage differently, it is any person’s guess how that marriage will be treated by crossing state lines. When the issue is applied to different facts, such as adoption rights, enforcement of pre or post-marital contracts, insurance contracts, property rights, decedent rights etc., the the waters become even murkier. In all cases, the courts are where these issues must be resolved.

In the United States, the U.S. Supreme Court ruled that the Defense of Marriage Act (“DOMA”) was unconstitutional. That ruling only applies from denying federal and not state benefits to legally-married same-sex couples. To date, 17 U.S. states have upheld the validity of same-sex marriage. In Mexico, three states fully recognize same-sex marriage and adoption rights are extended in Mexico City. The remaining states in both countries are either changing their laws, or are holding out until the courts decide whether to enforce marital rights. In Mexico, many states are passing civil-union laws in an attempt to delay implementation of same-sex marriage laws.
Tennessee is a “hold out” U.S. state. Last year, four couples filed suit challenging the constitutionality of state law which only recognizes a union “between one man and one woman”. On March 14, 2014, the federal court in Nashville issued a preliminary injunction temporarily barring the state from enforcing the anti-recognition law to the parties involved in that case. See: Tanco et al. v. Haslam Memorandum Order (March 14, 2014). The decision was based on Judge Trauger’s belief that “The impact of future decisions, which are forthcoming as the result of continuing litigation in other federal trial and appellate courts across the country, will inevitably influence the ultimate disposition of this case”. Id. at p. 3. The narrow issue in Tanco was whether Tennessee may refuse to recognize the three same-sex legal marriages consummated in other states in that particular case. In other words, only six people were affected by this ruling, and Tennessee’s anti-recognition law is currently in full force.

One lesbian couple in Tanco, had artificially inseminated and challenged the fact that Dr. Jesty (a veterinarian) would not be recognized as the child’s legal parent. The federal social security benefits guaranteed under federal law could not be extended to the child should Dr. Jesty die. The couple also asserted that if the maternal parent were incapacitated, the unrecognized parent would be unable to visit the child in the hospital if the other parent could not give consent. Id. One of the other couples challenged the non-recognition of an adoption by Tennessee.
Marriage Equality

Rather than choosing to abandon this challenge that would likely succeed in the higher court, the Tennessee Attorney General filed an appeal to the Sixth Circuit Court of Appeals on March 18, 2014. The federal court in Tennessee’s socially-conservative neighbor Kentucky held that that state must recognize same-sex marriages from other jurisdictions. The governor of that state is planning to appeal as of this writing. Yes…the Sixth Circuit Court of Appeals sitting in Cincinnati will be busy this spring deciding these cases.
Whether the issue involving gay marriage arises in a socially-conservative southern state, or south of the U.S. border, the courts are changing the landscape very quickly. Recognition of gay marriage is the civil rights issue of 2014.

Sean Lewis is a U.S. immigration attorney based in Nashville, Tennessee. He has filed many same-sex visa petitions for spouses and fiancés before the immigration service and U.S. consulates following the Windsor decision. Sean has local ties to Puerto Vallarta, Mexico and is married to a native of Nayarit and Vallarta. For those in Mexico, Sean may be contacted on his Guadalajara landline at 01-(335) 004-2258, or visited on his web site at www.MusicCityVisa.com. His phone number in Nashville, Tennessee is (615) 226-4236 (615-ABO-GADO).
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Permanent Residency following Temporary Protected Status (TPS)?

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March 13, 2014
Washington, D.C.—Last week, the American Immigration Council and the Northwest Immigrant Rights Project (NWIRP) filed an amicus curiae brief urging the court to find that noncitizens granted Temporary Protected Status (TPS) are eligible to apply for lawful permanent residence (i.e., adjustment of status), even if they originally entered the United States without being admitted or paroled. This is because the grant of TPS qualifies a noncitizen as having been “admitted” to the United States—one of the requirements for adjustment of status. In 2013, the Sixth Circuit found that the grant of TPS permits a person who initially entered without being admitted to become a lawful permanent resident, and amici urge the District Court for the Western District of Washington to reach the same result.
The case is Ramirez v. Dougherty, No. 13-1236-TSZ (W.D. Wash. amicus brief filed March 6, 2014).

From the American Immigration Council press release March 13, 2014.
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MARRIAGE EQUALITY: CIVIL RIGHTS MOVEMENT ON TWO SIDES OF THE BORDER

CIVIL RIGHTS MOVEMENT PROCEEDING ON BOTH SIDES OF THE U.S. BORDER: JALISCO IN A POLITICAL FIGHT TO AVOID BEING THE FOURTH MEXICAN STATE TO RECOGNIZE SAME-SEX MARRIAGE, TENNESSEE ALSO RESISTS MARRIAGE EQUALITY

November 1, 2013

By Sean Lewis, Immigration Attorney
Music City Visa
Nashville, Tennessee, USA
(615) 226-4236
Sean@MusicCityVisa.com

This year has been a revolutionary year in terms of a civil rights movement of same-sex couples seeking marital equality. In June, The U.S. Supreme Court struck down DOMA and drastically altered the landscape by allowing same-sex couples married in states that recognize same-sex marriage to receive federal benefits. The Mexican Supreme Court previously took similar action by recognizing basic Constitutional protections of gay couples. Many states in both the United States and Mexico are either legalizing same-sex marriage, or trying to side-step the issue by passing civil-union laws. The avoidance of marriage equality by some Mexican states only puts off the inevitable forced-recognition of same-sex marriage by the Mexican courts in 2014.

On October 31, 2013, the State of Jalisco Mexico legalized same-sex civil unions trying not to become the fourth Mexican state to recognize marriage equality. Same sex couples under the new law may enter into a written marital contract but may not adopt children or call the union “marriage”. In short: this is not “marriage”.

On the other side of the border, and ten days prior to the Jalisco vote, New Jersey became the 14’th U.S. state to recognize same-sex marriage, while on the same day, Nashville attorney Abby Rubenfeld filed a lawsuit in federal court seeking to declare the prohibition on same-sex marriages in Tennessee unconstitutional. This lawsuit is similar to other lawsuits currently filed in several states in the U.S. seeking full recognition of same sex marriages asserting equal protection challenges inter alia.

Although the legal systems on both sides of the border differ drastically, the issue of marriage equality and fundamental rights appear to have a lot in common. Both countries are grappling with major changes handed down from their respective high courts. The Mexican Supreme Court held that federal human rights guarantees apply to same-sex couples, but did not directly address other civil rights. In today’s world, international and state-to-state travel certainly guarantees that same-sex couples’ rights can change in an instant by crossing a state line or international border. One can only imagine a situation where a child of a same-sex couple is not recognized as the legitimate child following a death of one parent merely because the couple moved from state-to-state or has retired abroad. Such results will certainly spawn litigation.

On October 30, 2013, the Jalisco Legislature decided in a 20 to 15 vote that same-sex unions are now legal in the populous state of Jalisco. For those stateside, a large population of American, Canadian and German expats reside in Guadalajara, Puerto Vallarta and Chapala, Jalisco Mexico. For those in Mexico, Tennessee is a major tourist destination with large populations of Latinos, especially in Nashville and Memphis but with a less-auspicious gay population. In Mexico, Puerto Vallarta is a major gay vacation destination and does not hide this fact. The beaches, food and friendly locals are world-renown.

What remains clear is that in those states that deny full marriage equality, is that certain rights, including parental rights, adoptions, and inheritance issues will be decided by the courts. In both countries, family law and decedent’s rights are traditionally a matter of state law. Under the current patch work of state laws in the U.S. and Mexico, same-sex couples do not enjoy the same rights as traditional couples in Mexico and in the U.S. The vote by the Jalisco legislature, follows the State of Colima legislature’s passage of a similar civil union law. What is happening in Mexico is that states are either throwing in the towel due to the inevitability of the passage of sex-sex marriage by the courts, or putting off that eventuality. These issues are certainly going to come up through the state courts in 2014. What many Americans in the U.S. fail to recognize is the vast influence the Roman Catholic Church has in Mexico. Notwithstanding Pope Francis’, apparent tolerance of gays, the Roman Catholic Church, Diocese of Guadalajara, officially and vehemently opposes gay marriage and supported the civil-union law for that reason.

Same-sex couples are in the midst of a momentous civil rights movement. If the Jalisco legislature does not take up the issue of what core rights are afforded to same-sex couples, the courts will certainly declare full-marriage an inherent right in that state. If the Nashville District Court suit is successful, the traditional rights that flow from any marriage will be clarified. In the State of Tennessee. this type of litigation is virtually guaranteed in every U.S. state that does not fully recognize sex-sex marriages.

Sean Lewis is an immigration attorney based in Nashville, Tennessee. He has filed many same-sex visa petitions for spouses and fiancés before the immigration service and U.S. consulates following the US Supreme Court decision. Sean has local ties to Puerto Vallarta and is married to a native of Nayarit and Vallarta. For those in Mexico, Sean may be contacted by his Guadalajara landline at 01-(335) 004-2258, or visited on his web site at www.MusicCityVisa.com. Sean Lewis is currently accepting new clients.

© 2013, Sean Lewis, Esq.

U.S. Supreme Court Overturns DOMA and Immigration Benfits Now Available to Same-Sex Spouses

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The USCIS has announced that I-130 visa petitions filed by same-sex spouses will be adjudicated “in the same manner” as opposite-sex marriage petitions. Even if the couple resides in a state where same-sex marriage is not recognized, the immigration service will respect the law of the state in which the marriage was contracted. In other words, if the marriage was valid in a same-sex marriage state, the petition will be honored even if the state where the couple live do not recognize the marriage. In effect, U.S. Immigration Law by judicial decision seeks to keep families together without regard to sexual orientation.

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Sean Lewis is an immigration attorney who handles all immigration matters and may be contacted at 866-892-9264.