How Post-Conviction Relief Prevents Immigration Risks
Facing the aftermath of a criminal conviction is overwhelming, especially for non-citizens residing in the United States. A conviction can lead to serious immigration consequences, such as deportation, inadmissibility, and exclusion from naturalization. However, post-conviction relief offers a pathway to address these challenges. By exploring legal remedies, you may be able to mitigate or eliminate the immigration consequences tied to your conviction.
Common Legal Remedies for Post-Conviction Relief
Several types of motions are available to challenge or modify convictions and mitigate their impact. Each type of motion has its specific conditions, making it necessary to work with a criminal attorney familiar with the local criminal courts to achieve the results you need to remain in the United States.
Motion to Vacate a Conviction
Filing a motion to vacate a conviction under California Penal Code § 1473.7 is one of the most effective strategies for post-conviction relief, particularly for non-citizens facing severe immigration consequences. Enacted in 2017, this statute provides a legal pathway for individuals who are no longer in custody but wish to challenge the validity of their conviction due to errors related to immigration advisement or newly discovered evidence of innocence. Successfully vacating a conviction can nullify its impact on immigration proceedings, offering an opportunity for individuals to avoid deportation or other immigration penalties.
Grounds for Relief Under Penal Code Section 1473.7
There are two primary grounds upon which an individual can file a motion to vacate a conviction under this provision:
- Failure to Be Adequately Advised of Immigration Consequences
Defendants must demonstrate that they were not properly informed of the immigration repercussions tied to their plea agreement. This means showing that their attorney, the court, or both failed to advise them that entering a guilty or no contest plea could lead to deportation, inadmissibility, denial of naturalization, or other immigration ramifications. For example, a defendant’s lawyer may have incorrectly assured them that their plea would have no impact on their immigration status, which is a critical misstep.
- Newly Discovered Evidence of Innocence
A motion can also be filed if new evidence surfaces that points to the defendant’s innocence. This evidence must be substantial and likely to have prevented the conviction if it had been presented during the original trial or plea agreement process.
How a Motion to Vacate Helps with Immigration Consequences
Vacating a conviction essentially erases it for immigration purposes, granting non-citizens a second chance to pursue or maintain lawful status in the United States. For many individuals, this remedy can close the door on deportation proceedings or remove obstacles to applying for a green card, adjusting status, or naturalizing as a U.S. citizen. For instance, nullifying convictions that were considered “crimes involving moral turpitude” (CIMTs) or aggravated felonies can significantly alter one’s immigration outcomes.
This remedy is especially beneficial because under federal immigration law, traditional forms of post-conviction relief like expungement may not eliminate immigration consequences unless the underlying conviction is vacated due to a legal defect.
The Role of Ineffective Assistance of Counsel
A common argument in Penal Code § 1473.7 motions is ineffective assistance of counsel, which falls under a defendant's Sixth Amendment rights. Ineffective counsel may occur when an attorney fails to inform their client about the immigration penalties tied to a plea or provides fundamentally flawed advice. For example:
- An attorney might incorrectly state that a conviction is not deportable or fails to identify “safer” plea options that would not jeopardize the client’s immigration status.
- The attorney may neglect to assess how the specific charges fit into the broader framework of immigration law, leading to serious consequences for the client.
To succeed on this claim, the defendant must prove that their counsel’s failure directly impacted their decision to plead guilty or no contest. Courts will also require the individual to demonstrate that they would have proceeded differently (such as going to trial or negotiating an alternative plea) had they received accurate immigration advisement.
Importance of Demonstrating Prejudice
To vacate a conviction, courts typically require evidence of prejudice. This means showing that at the time of the plea, the defendant would have considered immigration consequences as a paramount concern and made a different decision if they had been properly informed. For non-citizens, this is often straightforward, as the possibility of deportation or losing lawful immigration status can outweigh the risks associated with going to trial.
Courts may examine factors such as:
- The individual’s ties to the U.S., including family relationships, employment, and community involvement.
- The severity of the conviction's immigration impact compared to the original criminal penalties.
- Any alternative pleas that may have been available at the time, including less severe or “immigration-safe” options.
