Post Conviction Relief

Post Conviction Relief For Immigrants

When someone convicted in State Criminal Court faces deportation or removal based on their criminal record, it is important to investigate whether Post-Conviction Relief is viable.

Post-Conviction Relief may take many forms, but it is usually is some sort of a motion made in the State Criminal Court to modify, reduce, expunge, vacate, or alter in some way either the plea, the sentence, or the record of conviction.

When it is necessary to vacate a plea, it is first important to review the record of proceedings to determine which documents make up the official record of proceedings, and what the immigration consequences will be for the particular conviction.

The immigration consequences are often different for each different person, as much depends on the date of the conviction, the immigration status of the defendant, the date the immigrant/defendant entered the U.S., how the immigrant/defendant entered the U.S., the prior criminal history, etc.

It is of course much better to have an immigration lawyer involved in the State Criminal Court process prior to a plea being taken so as to better shape the record of conviction with future immigration consequences in mind. While California Penal Code § 1016.5 requires all defendants to be advised by the Judge that a plea of guilty or no contest could have future adverse immigration consequences, most immigrant defendants rely on the advice of their lawyer concerning whether to accept a plea deal.

Problems often arise because not all lawyers are well versed in the intricacies of the immigration laws, and the immigrant defendant is often surprised later to learn of the adverse immigration consequences of the plea they accepted.

The first step in attacking a plea is often to see if the plea was “knowing and intelligent”. This often an inquiry into whether the defendant was advised of all the constitutional rights, including the admonitions under 1016.5 that accepting the plea could result in deportation, denial of admission into the U.S., or denial of naturalization. If the court minutes, signed plea form, or hearing transcript does not contain a record of these admonitions, a 1016.5 Motion to Vacate may be an option. Sometimes, older court records are purged, and there may be no record to prove whether or not the Court gave these admonitions.

Motions to vacate may also be made for other reasons, such as when the defense lawyer did not give good legal advice concerning the immigration consequences of a plea. These motions, often called “Padilla” motions, will be in the form of a writ of habeas corpus in the California Superior Court. A habeas writ requires that the defendant still be “in custody”, meaning he or she is still in criminal custody or under probation or parole.

Motions for Post-Conviction Relief can be tricky, as there is often a requirement to show prejudice, meaning it must be shown that had the proper procedures been followed, the defendant may have pursued some other viable defense or legal strategy to avoid the conviction.

The District Attorney (DA) may oppose a motion to vacate, or the DA agree to the motion or agree to vacate the plea but substitute the plea with a lesser offense that will not have the same adverse immigration consequences. Sometimes it may only be necessary for the DA to agree to amend the record of conviction in some way.

Even if a post-conviction relief order will be issued by the State Criminal Court, care should be taken to assure it will be recognized in the Immigration Court or before the USCIS. For example, when drafting the proposed order for the State Court Judge, it is best to show that the new order by the State Court Judge was done to cure a Constitutional or procedural defect in proceedings, as opposed to an order made simply for immigration purposes. However, there is a plausible argument that a new order by the State Court Judge should be given Full Faith and Credit by the USCIS and the Immigration Judge pursuant to the Constitution and Federal Statute regardless of the reason for the State Court order.

Post-Conviction relief is a complicate area of law involving the state and federal immigration court systems, but sometime is the only hope to avoid deportation or removal.

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