According to the Immigration and Nationality Act (INA), an alien is an individual who does not have U.S. citizenship and is not a U.S. national. The INA defines a national of the United States as one who, while not a citizen, owes permanent allegiance to the United States. One owes personal allegiance to the United States if that person has taken an oath of naturalization.
Aliens receive treatment very similar to the treatment that U.S. citizens receive in the context of the judicial system. For instance, the Fifth and Fourteenth Amendments of the United States Constitution apply to aliens residing within the United States. As such, the courts guarantee aliens the right to due process of law and equal protection of the laws. Courts have generally construed the Fourth Amendment as applicable to aliens as well. The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures.
Ohio has codified one due process right in Ohio Revised Code 2943.031. This code section requires that the court personally advise the alien, prior to accepting a guilty or no contest plea, “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
If the Alien was not given this caution, the case may be reopend and the plea vacated. After this is done the case may move forward, or the government may dismiss this case. We have recently had several cases reopend and in these cases the government dismissed the charges. Each case has to be analysed on its merits. If you have convictions that are effecting your application for immigration benefits, please contact your defense attorney to see if the cases should be reopened. If your defense counsel is unable or unwilling, please feel free to contact our office.