Criminal convictions can significantly impact non-U.S. citizens, including lawful permanent residents (green card holders) and undocumented immigrants. Convictions could lead to deportation or removal proceedings. The consequences of the proceedings depend on several factors. These include the type and severity of the offense and whether the crime qualifies as a deportable offense under U.S. immigration law.
Non-U.S. citizens facing immigration consequences due to a criminal conviction can explore post-conviction relief options. This involves petitioning the court to modify or vacate a conviction. If successful, post-conviction relief can positively affect your immigration case. It could eliminate grounds for deportation or reopen immigration proceedings if you are already in removal proceedings.
Post-Conviction Relief - Why Is It Important?
Certain minor offenses can significantly affect your immigration status once you are convicted. They could jeopardize your pursuit of the American dream. According to the federal Immigration and Nationality Act, convictions can lead to deportation or inadmissibility. This law lists various grounds for inadmissibility, including specific criminal convictions. Therefore, convictions for the listed offenses will make non-citizens ineligible for entry or continue to stay in the United States.
In response to these challenges, obtaining post-conviction relief becomes crucial to avoid deportation. Successful relief can help alleviate the negative impact of a conviction on immigration status.
However, when an immigrant is deemed inadmissible, the consequences are far-reaching. They impose restrictions on various aspects of their immigration status. Inadmissibility can hinder:
- Re-entry into the U.S. — Individuals found inadmissible could encounter obstacles when trying to re-enter the country after leaving. They could be denied entry at the port of entry.
- US. Citizenship — In some cases, being deemed inadmissible can impede an individual's ability to obtain U.S. citizenship through naturalization.
- Permanent residence (Green Card) — Inadmissibility is a barrier to obtaining or maintaining permanent residency, commonly known as a green card.
- Adjustment of status — For undocumented immigrants or those with temporary status, inadmissibility hinders applying for an adjustment status. Adjustment of status facilitates your transition from undocumented or temporary status to legal permanent residence.
Deportation resulting from a conviction of a deportable crime will not protect you from removal. The following factors do not offer absolute immunity:
- Legal status — Having a green card does not guarantee protection from deportation. Specific actions or violations can still lead to removal proceedings.
- Length of stay — Living in the U.S. for an extended period does not ensure immunity. Violating immigration laws or committing specific offenses can result in deportation.
- Family ties — While family relationships could be considered in immigration cases, they do not provide absolute immunity. Violating immigration laws or engaging in criminal activities can still lead to deportation.
- Employment — A job in the U.S. does not make you immune from deportation. Violations of immigration laws or criminal convictions can seriously impact immigration status.
- Children born in the U.S. — Even if you have U.S. citizen children, it does not automatically shield you from deportation. Your immigration status and actions are crucial factors.
What Crimes Will Likely Result in an Immigration Consequence?
Certain crimes will likely have immigration consequences. They could lead to deportation or inadmissibility. Common categories of such crimes include:
- Crimes involving moral turpitude (CIMT) — These are offenses involving dishonesty, fraud, or morally reprehensible conduct. They include theft or certain white-collar crimes.
- Aggravated felonies — These are serious offenses like rape, murder, and certain crimes of violence are considered aggravated felonies. Theft cases with a sentence of more than one year in prison are also classified as aggravated felonies.
- Drug offenses — These are convictions related to drug trafficking or drug abuse.
- Firearms offenses — These are crimes involving the use or possession of firearms.
- Domestic violence — These are convictions for domestic violence offenses, including assault.
- Crimes against the state — These are offenses related to terrorism, espionage, or sabotage.
Additionally, if you are convicted of two or more offenses whose cumulative sentence totals five or more years in prison, you will face deportation court proceedings.
Note: Ideally, you should not engage in the crimes mentioned above. However, should you commit the offenses, post-conviction relief is available.
Post-Conviction Relief Based on Ineffective Counsel
Individuals facing criminal charges and potential immigration consequences should seek advice from attorneys well-versed in criminal defense and immigration law. Pleading no contest (nolo contendere) to criminal charges can significantly impact immigration status, similar to a guilty plea.
Some attorneys recommend a “no contest” plea without fully considering the immigration consequences. Taking this plea could lead to unforeseen challenges. This is critical, as certain criminal convictions can result in deportation, inadmissibility, or other adverse effects on immigration status.
To navigate these complexities more effectively, your attorney must address potential immigration consequences. These issues should be addressed during the initial stages of criminal proceedings. This proactive approach involves negotiating a plea deal that minimizes the impact on immigration status. You can also explore alternative legal strategies that consider criminal and immigration consequences.
The Sixth Amendment to the United States Constitution guarantees the right to a fair trial. It allows individuals to seek post-conviction relief based on the claim of ineffective assistance from counsel. This becomes relevant if you believe your defense attorney's performance was deficient and prejudiced their case.
Filling a Padilla Motion
A Padilla motion is a legal action initiated following the U.S. Supreme Court's decision in Padilla v. Kentucky (2010). In this significant case, the Court mandated that criminal defense attorneys inform non-U.S. citizen clients about the potential immigration consequences of entering a guilty plea.
The Padilla v. Kentucky ruling acknowledged that deportation is a particularly severe outcome that can stem from a criminal conviction. Consequently, it established the obligation for defense attorneys to furnish accurate advice to their non-U.S. citizen clients regarding the immigration implications associated with a plea deal.
Typically, an individual files a Padilla motion after pleading guilty or nolo contendere (no contest) to a criminal charge and subsequently facing adverse immigration consequences. The motion contends that the individual received ineffective assistance from counsel. This assertion only works if their criminal defense attorney failed to provide proper advice on the immigration ramifications of their plea.
You can seek post-conviction relief by filing Padilla motions. This option helps you assert that your constitutional right to effective assistance of counsel was violated. If successful, the court can reevaluate your initial plea, granting you the opportunity to withdraw it. Alternatively, the court will explore an alternative resolution that minimizes the impact on your immigration status.
How Filing for Resentencing Helps You Avoid Deportation
A motion for resentencing is a legal strategy to potentially help you avoid deportation by seeking a modification of your original sentence. If there have been significant changes in your circumstances since the initial sentencing, for example, new evidence or case developments, filing this motion can bring these changes to the court's attention.
This legal approach could involve seeking a reduction in charges or sentences. It aims to eliminate deportation grounds or improve your standing in immigration proceedings. Negotiating a new plea deal more favorable for your immigration status could also be part of this process.
The immigration consequences associated with specific criminal convictions depend on the given sentence. Here are a few examples:
- Convictions for crimes involving moral turpitude could render you inadmissible. However, this rule applies unless the maximum sentence for the crime is one (1) year or less and the actual sentence is six months or less.
- In California, a theft crime is deemed an "aggravated felony." This makes it a deportable offense if the court issues a sentence of at least one year in prison for the crime.
- You will face inadmissibility if you are convicted of more than one crime, and the resulting sentences total five years or more.
Reducing a Felony to a Misdemeanor and Its Impact on Immigration
Penal Code Section 17(b) permits individuals with felony convictions to request the court for a reduction of the felony to a misdemeanor. This option applies to specific offenses, with eligibility criteria considering factors like the offense's nature, the individual's criminal history, and the completion of probation or sentence.
The key advantages of reducing a felony to a misdemeanor include:
- Mitigation of immigration consequences — Reducing a felony to a misdemeanor could, in some cases, help mitigate immigration consequences. Felony convictions have serious implications for immigration status. A reduction to a misdemeanor contributes to a more favorable immigration outcome.
- Enhanced employment opportunities — Employers generally view misdemeanor convictions more leniently than felonies. The reduction of a felony to a misdemeanor can positively impact employment prospects.
- Licensing and certification relief — Professions and occupations often impose licensing requirements that can be affected by felony convictions. Having a felony reduced to a misdemeanor alleviates restrictions associated with licensing.
- Restoration of firearm rights — Certain firearm rights that could be restricted due to a felony conviction could be reinstated by reducing the offense to a misdemeanor.
In California, converting a felony conviction to a misdemeanor can serve as a practical post-conviction remedy, especially under specific conditions:
- "Wobbler" offense — California designates certain crimes as "wobblers." Prosecutors can pursue the charges as either felonies or misdemeanors based on case circumstances and an individual's criminal history. If your original felony conviction is for a wobbler offense, you are eligible to seek a reduction of your felony conviction to a misdemeanor.
- Probation granted — Eligibility for misdemeanor reduction often hinges on the individual being granted probation instead of a prison sentence. Completing probation and fulfilling specified requirements can make you eligible to request a formal reduction from the court.
Withdrawing a Guilty Plea
Suppose you plead guilty without being aware of the potential immigration consequences of your sentence. In that case, California law offers a solution through a post-conviction relief mechanism known as a motion to withdraw a guilty or no-contest plea.
This motion needs to be submitted either:
- Before sentencing — If filed before the judge pronounces your sentence, you can present reasons for withdrawing the plea, mainly due to a lack of awareness regarding immigration consequences.
- Within six months after final judgment — Alternatively, if you receive a probation sentence, the motion to withdraw the plea can be made within six months after the final judgment.
If you believe you were not adequately informed about the immigration consequences of your plea, you can file a motion to withdraw the plea based on Penal Code 1016.5. This code is designed to ensure non-U.S. citizens fully grasp potential immigration outcomes before entering a plea.
Your motion would assert that you received insufficient advisement about the consequences of your plea regarding immigration. You will likely need to demonstrate that this deficiency significantly influenced your decision to plead guilty to vacate your conviction based on the lack of advisement. Establishing a clear connection between the failure to provide the required warning and your choice to enter a guilty plea when seeking post-conviction relief is crucial.
Habeas Corpus Petitions and Deportation
A Habeas Corpus petition is a formal legal request submitted to a court by an individual in detention or imprisoned. This petition challenges the legality of the person's confinement, contending that their detention violates constitutional rights.
Habeas Corpus is a crucial legal safeguard against arbitrary or unlawful detention. It aims to protect individual liberty. The petition asserts release grounds based on due process violations, constitutional infringements, or improper legal procedures.
A Habeas Corpus petition can be employed to argue the ineffective assistance of counsel, serving as an avenue for seeking post-conviction relief and potentially avoiding deportation.
Note: There are no stringent deadlines when submitting a Habeas Corpus petition. A key aspect is that you file while in custody. This includes when you are on probation or parole.
Forms of Post-Conviction Relief that Will Not Eliminate Immigration Consequences
Not all forms of post-conviction relief guarantee the elimination of immigration consequences. Some options, like a pardon, expungement, or criminal record sealing, do not automatically erase immigration implications. While these remedies offer relief in specific legal contexts, immigration authorities could still consider the underlying conviction.
In immigration cases, the primary focus of post-conviction relief centers on addressing potential legal defects in the conviction. The objective is to actively identify and challenge elements of the conviction that have implications for immigration consequences.
The question is then posed: To what extent does post-conviction relief under Proposition 64 mitigate the immigration consequences of a marijuana conviction?
It remains uncertain whether non-citizens can avoid deportation for marijuana offenses by vacating a conviction under Proposition 64, which legalized recreational marijuana in California. Although Proposition 64 impacts state criminal laws related to marijuana and could result in the reduction or elimination of certain offenses, federal immigration consequences are determined by separate laws.
Federal authorities could still consider the original conviction circumstances, notwithstanding state-level post-conviction relief. The federal classification of marijuana as a controlled substance and the specific immigration consequences tied to drug-related offenses add complexity to the situation.
Health and Safety Code 11361.8, part of Proposition 64, sets up a system for post-conviction relief. It targets individuals who were previously convicted of marijuana offenses in California before its legalization for recreational use. This provision responds to the fallout from convictions preceding the state's marijuana law changes. It offers eligible individuals a chance to alleviate the collateral consequences of these convictions and reduce their impact on various aspects of their lives.
Certain marijuana-related offenses make non-citizens potentially eligible for post-conviction relief under Proposition 64. These offenses include:
- Possessing up to four grams of concentrated cannabis.
- Giving away up to around an ounce of marijuana and
- Cultivating six or fewer marijuana plants for personal use.
Unfortunately, there is a substantial likelihood that U.S. immigration and federal courts could perceive the relief offered by Proposition 64 as "rehabilitative." This is despite Proposition 64 explicitly stating that eligible prior marijuana convictions are "legally invalid."
If the relief under Proposition 64 is ultimately deemed rehabilitative, it would not be a safeguard against deportation for defendants. This potential interpretation introduces complexity to the legal scenario, leaving the effectiveness of relief measures in preventing deportation uncertain.
Individuals grappling with these circumstances should seek legal guidance to navigate evolving interpretations and implications within the immigration and federal court systems.
Note: Vacating or sealing a marijuana conviction can aid in seeking post-conviction relief. This action can potentially create obstacles for federal immigration authorities in uncovering or providing conclusive evidence of the conviction. Seeking relief through Prop. 64 by vacating and sealing the conviction is a strategic move for immigrants affected by marijuana convictions under the new law.
Contact a Los Angeles Immigration Attorney Near Me
Dealing with immigration complexities post-conviction requires a nuanced approach. To seek post-conviction relief, a thorough evaluation of your case is essential. This highlights the crucial role of involving a California immigration attorney for assistance. Their expertise becomes invaluable in comprehending the intricacies of your situation and navigating the legal complexities of seeking relief.
Getting an attorney on board early significantly boosts your chances of successfully pursuing post-conviction relief. Count on us, the California Immigration Attorney, to guide you through the process and work towards securing a favorable outcome as we aim for a logical conclusion to your case. Call us at 424-789-8809 for further assistance.