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New post-conviction relief exception sought for those facing deportation

Linus Chan, an associate clinical professor of law at the University of Minnesota, testifies before the House's judiciary and civil law division on HF3975, which would modify petitions for post-conviction relief. Photo by Paul Battaglia

Minnesotans convicted of a crime have two years to apply for a court review of their conviction.

But that two-year limit can be extended for five circumstances, such as the discovery of new evidence.

HF3975 would add a sixth: people facing immigration removal as a result of a conviction that came about “as a result of a conviction that was obtained by relying on incorrect advice or absent advice from counsel on immigration consequences.”

Sponsored by Rep. Carlos Mariani (DFL-St. Paul), the bill was approved by the House Judiciary Finance and Civil Law Division Wednesday and sent to the House Floor. Sen. Foung Hawj (DFL-St. Paul) sponsors the companion, SF4087, which awaits action by the Senate Judiciary and Public Safety Finance and Policy Committee.

Bill proposes new post-conviction relief exception 3/11/20

According to a 2010 U.S. Supreme Court decision, receiving incorrect legal advice at the time of a person’s conviction is a violation of their Sixth Amendment rights, said Linus Chan, an associate clinical professor of law at the University of Minnesota.

Immigration consequences of a criminal conviction have no statute of limitations so they last well beyond the two-year post-conviction relief limit, noted Chan. “[It] is a good reason to allow someone to go back and re-examine whether or not their conviction was unconstitutional or illegal.”

Post-conviction relief gives a person a day in court for a “high-stakes outcome,” Mariani said.

A similar bill, HF739, also sponsored by Mariani, was introduced last year, and awaits action by the House public safety division.

The current law is having a “devastating impact” on Southeast Asian and African immigrant communities across Minnesota, said KaYing Yang, director of programs and partnerships for the Coalition of Asian American Leaders.

The proposed change is needed because decades ago, or even longer, immigrants pleading guilty to criminal charges were not fully informed of the legal ramifications of the immigration restrictions and conditions that were a part of the plea, Yang said.

In many cases, adults who came to this country decades ago as young children are being deported to countries where they don’t speak the language and don’t know anyone living there, she said.

“Our community members deserve redemption and a second chance, like any other American,” said Yang.


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