LOS ANGELES POST CONVICTION RELIEF

Los Angeles Post Conviction relief Attorney

Uribe & Uribe APLC  focuses its practice is on defending, hard to defend immigrant clients that are facing serious consequenes in immigration and criminal court. Uribe & Uribe APLC serves clients from all walks of life that are facing adverse immigration consequences as a result of a criminal conviction. Our mission is to provide an excellent defense for non citizen defendants facing adverse immigraton consequences. Uribe & Uribe APLC recognizes that there is a vast community of underserved individuals that must navigate both the California criminal court system as well as the United States federal government's immigration court system. This website is dedicated to educating non citizen clients who are will or potentially will suffer adverse immigration consequences. If you would like legal advise for your particular immigration related case or criminal case that may cause adverse immigration consequences please contact Uribe & Uribe APLC  to schedule a consultation.  

 Why Seek Post Conviction Relief?

For most people a guilty plea in criminal court entered many years ago is nothing more than a bad memory of a difficult time in one's past. The truth is that criminal convictions for a non citizen defedant can have devastating effects many years after the conviction. Even relatively minor criminal convictions can cause immigrants who have spent the vast majority of their lives in the United States to be placed in removal proceedings in immigration court. As a result of a criminal conviction a non citizen defendant can be detained for weeks, months, or years in immigration facilities often located hundreds of miles from home. Unfortunately most immigrants that are placed in immigration detention are deported as a result of removal proceedings intiated against them as a direct result of the criminal conviction or sentence related to that conviction. 

Remedies and Immigration Consequences

In recognizing the severity of these immigration penalties, and the fact that they flow directly from criminal convictions the California Legislature has enacted legal remedies that can alleveate the adverse immigration consequences caused by an uninformed plea. Immigration consequences of a criminal conviction can include removal, permament ineligibility for lawful immigration status, extended or indefinite periods of immigration detention, and permanent seperation from family members who are United States citizens. This can happen no matter how long you have lived in the United States and no matter how many of your family members are United States citizens. In order to avoid adverse immigration consequences associated with a criminal conviction one must engage counsel that has the knowledge and experience to navigate the would be consequences in criminal and immigration court. If you are an immigrant defendant or a non citizen defendant facing a criminal conviction it is important to seek competent legal advise to avoid adverse immigration consequences. The attorney's at Uribe & Uribe APLC maintain decades of experience representing clients with immigration concerns.

Immigrant Defendants Have Rights

The United States Supreme Court has found, criminal convictions may have dire consequences under federal immigration law and that such consequences are material matters for non-citizen defendants faced with pleading decisions. For instance, some one who is deported cannot return to his home, loses his job, his friends, his home, and maybe even his children. The family is left in a situation where they must choose between staying with their parents and their native country. For a defendant with immigration concerns, he or she may view immigration consequences as the only ones that could affect his or her calculations regarding the advisability of pleading guilty to criminal charges. As a result it is critical to engage in a post conviction attorney that has experience representing immigrant defendants in criminal court. 

Penal Code Section 1473.7

On January 1, 2017 California Penal Code section 1473.7 went into effect, providing non citizens who are no longer in criminal custody with a legal vehicle to challenge old, unlawful convictions. In essence this law provided a remedy for immigrant defendant's who did not meaningfully understand the immigration consequences of a conviction at the time of their plea. Penal Code section 1473.7 provides an opportunity for noncitizens to challenge convictions when the noncitizen failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime. In 2018 the California Legislature amended the penal code since some courts mistakenly interpreted section 1473.7(a)(1) to apply solely to claims of ineffective assistance of counsel, ignoring the statutory language that a claim could be made based on the defendant's subjective inability to "meaningfully understand" or "knowingly accept" the immigration consequences of a plea. Instead it was found that the law must be interpreted in the interests of justice and in accordance with the findings and declarations of California penal code section 1016.2. Penal Code section 1016.2 describes the severe and disproportionate impact that criminal consequences can have for noncitizen defendants and the damage that deportations can cause to United States citizen family members and their surrounding communities. See below for more about Penal Code section 1016.2 and the protections that it provides to non citizen defendants. The experienced post conviction relief attorneys at Uribe & Uribe APLC can provide expert advice for clients with concerns related to a criminal conviction and his or her immigration status. Before one begins the post conviction process it is important to determine whether one qualifies for a post conviction vehicle that will allow the non citizen or immigrant defendant to vacate his or her conviction. If you or a loved one is in need of post conviction relief to vacate a criminal conviction that is now causing adverse immigration consequences it is important to engage competent counsel capable of guiding you through the post conviction process. 

Who Qualifies for Penal Code Section 1473.7 Relief?

In order to qualify for relief under Penal Code Section 1473.7, a defendant must no longer be in actual or constructive criminal custody. This rule is understood to mean that a defendant can no longer be in jail or on probation or parole to initiate a Penal Code Section 1473.7. A Penal Code section 1473.7 motion must also be filed with due diligence after the defendant becomes aware of the immigration consequence. The clock starts clicking on a claim when the defendant is placed on notice of the immigration consequences of a crime, which occurs at the later of the two dates, either: (1) when a person receives a notice to appear in removal proceedings or a denial of some immigration benefit alleging the conviction as the basis for removability or the benefit's denial: or (2) when a person receives a final order of removal. In order to be succesful in a Penal Code section 1473.7 motion, the moving party must establish that a "prejudicial error" occured. Penal Code section 1473.7(e)(1) indicates that the moving party must establish that the "conviction or sentence being challenged is currently causing, or has the potential to cause, removal or the denial of an application for an immigration benefit, lawful status, or naturalization". In simple terms there must be connections shown between the conviction and an articulable immigration consequence. For more information on penal code section 1473.7 and how this law can help a noncitizen defendant follow this link.

People v. Camacho (2019) 32 Cal. App. 5th 998

The Camacho Court recognizes that as first enacted, Penal Code Section 1473.7 provides in relevant part that “a person no longer imprisoned… may prosecute a motion to vacate a conviction … that is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.” Section 1473.7, subdivision (e)(1), which remains unchanged, provides: “The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any ground for relief specified in subdivision (a).” In the two years that followed the enactment of Penal Code Section 1473.7, courts uniformly assumed, that moving parties who claim prejudicial error caused by having received erroneous or inadequate information from counsel, must demonstrate that counsel’s performance fell below an objective standard of reasonableness under prevailing norms, as well as a reasonable probability of a different outcome if counsel has rendered effective assistance. Those courts either expressly or impliedly followed the guidelines enunciated in Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland). See, e.g., People v. Espinoza (2018) 27 Cal. App. 5th 908, 914, 917; People v. Tapia (2018) 26 Cal. App. 5th 942, 949, 951 [citing Perez]; People v. Olvera (2018) 24 Cal. App. 5th 1112, 1114, 1116 (Olvera); People v. Ogunmowo (2018) 23 Cal. App. 5th 67, 75 – 76 (Ogunmowo); People v. Perez (2018) 19 Cal. App. 5th 818, 828, 831 & fn. 8. It is important to note that the rule established in Penal Code Section 1473.7 like any other statute is based upon statutory interpretation by judges who apply the law to the facts of a petitioner's particular case. The decision in Camacho provides insight into how the law can be applied to help immigrant defendants seeking post conviction relief.  

Penal Code Section 1016.2

Penal Code section 1016.2 maintains protections for non citizen defendants in criminal court. For instance, the California Legislature has codified the findings below and declares the following:

(a) In Padilla v. Kentucky (2010) the United States Supreme Court held that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. California courts also have held that defense counsel must investigate and advise regarding the immigration consequences of the available dispositions, and should, when consistent with the goals of and informed consent of the defendant, and as consistent with professional standards, defend against adverse immigration consequences. See People v. Soriano (1987), People v. Barocio (1989), and People v. Bautista (2004). 

(b) In Padilla v. Kentucky, the United States Supreme Court sanctioned the consideration of immigration consequences by both parties in the plea negotiating process. The court stated that “informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process.  By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.”

(c) In Padilla v. Kentucky, the United States Supreme Court found that for noncitizens, deportation is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense.  It may be by far the most serious penalty flowing from the conviction.

(d) With an accurate understanding of immigration consequences, many noncitizen defendants are able to plead to a conviction and sentence that satisfy the prosecution and court, but that have no, or fewer, adverse immigration consequences than the original charge.

(e) Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences.

(f) Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.

(h) When the Legislature enacted Penal Code section 1473.7 its intent was to codify Padilla v. Kentucky and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.

Penal Code Section 1016.5

Penal code section 1016.5 is a remedy that was first enacted in 1978. Essentially this Penal Code puts the onious on the Court to advise immigrant defendants of adverse immgiration consequences. If the court did not advise you of potential adverse immigration consequences you may be able to prosecute a Penal Code section 1016.5 motion to have that conviction vacated. The rule is that before a court may accept a guily or no contest plea, it must advise the defendant of the potential immigration consequences of his or her plea as provided in Penal Code section 1016.5, subdivision (a). Where there is no record the defendant was so advised, there is a presumption he or she was not, and the prosecution bears the burden of rebutting the presumption. If the advisements were not given, section 1016.5(b) provides the defendant with the remedy of moving to withdraw a guilty or no contest plea when he or she establishes that the conviction based upon the plea may have the consequences of his or her deportation, exclusion for admission in the United States, or the denial of naturalization. Simply, Penal Code section 1016.5(a) requires the trial court, prior to accepting a plea of guilty or nolo contendere, to give the defendant the following advisement on the record.

If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion for admission to the United States, or denial of naturalization pursuant to the laws of the United States. Penal Code Section 1016.5(a)

Upon receiving the advisements, the rule established in Penal Code section 1016.5 contemplates a period during which the defendant, without risking the loss of the existing plea bargain, can reconsider the value of the offer in light of immigration consequences that will result from it and attempt to negotiate a different bargain that may not contain the same consequence. Essentially the Penal Code provides for more time to consider any potential immigration consequences that may attach to the non citizen defendant as a result of accepting the criminal conviction associated with the plea. The California Legislature enacted this statue is to promote fairness to non citizen defendants by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences of his or her guilty or (no contest plea).

Importantly this stature provides a remedy: If the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense may have the consequence for the defendant of deportation, exclusion from admission to the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. For more information on Penal Code section 1016.5 and how this law can help a noncitizen defendant foll

Guilty Pleas Cause Grief in Immigration Court

Many immigrants do not become aware of immigration consequences until immigration authorities initiate removal proceedings, often years after the immigrant defendant successfully completed probation or parole. As a result, many families have been torn apart by deportations based on convictions entered unknowingly by non citizen family members. Court's have found and our California Legislature has recognized that, “once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.” The bottom line is that adverse immigration consequences stemming from unlawful convictions have caused an unmistakable harm to the immigrant community and in turn to greater American society. Further our United States Supreme Court has found that “criminal convictions may have ‘dire consequences’ under federal immigration law and that such consequences are “material matters” for noncitizen defendants faced with pleading decisions.’ ‘A deported alien who cannot return loses his job, his friends, his home, and maybe even his children, who must choose between their parent and their native country. Indeed, a defendant ‘may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges’, such as when the defendant has family residing legally in the United States. Thus, even before the Legislature expressly recognized in section 1016.5, subdivision (d) the unfairness inherent in holding noncitizens to pleas they entered without knowing the consequent immigration risks, we held that justice may require permitting one who pleads guilty “without knowledge of or reason to suspect immigration consequences to withdraw the plea.  

Vacate a Criminal Conviction To Avoid Deportation

The attorneys at Uribe & Uribe APLC understand the high stakes and severe consequences that are involved when a client is accused of a crime. Defending non-citizens accused of crime requires an understanding of how a criminal conviction will affect an immigrant's fate in immigration court. Drug charges, domestic violence, DUIs, solicitation, assault, aggravated felonies and firearm charges are just a few of the many crimes that will cause adverse immigration consequences for an immigrant defendant in criminal court. The attorneys at Uribe & Uribe APLC understand the high stakes for a client who has immigration concerns. Defending non-citizen clients with visas and permanent residency cards takes an understanding of immigration law since an immigrant client faces another set of consequences in immigration court. For an immigrant defendant it is important to engage a law firm who is knowledgable in both the consequences of criminal and immigration law. 

Deportation Ruins Lives 

Too often defense attorneys either through fear or intimidation settle for a plea bargain that does not serve his or her client's best interest. This is especially unfortunate for non-citizen defendant's since when it comes to concerns about adverse immigration concequences many judges and prosecutors may see immigration as a collateral issue even though the fear of being deported as a result of a guilty plea is often the most important interest that an immigrant client has. Deportation or removal from the United States can signify a complete change in a person's life and destroy everything that the client has worked to achieve. At Uribe & Uribe APLC we know it is in our client's best interest to not settle for a plea bargain that can lead to deportation, exclusion from admission or denial of naturalization later in immigration court, instead it is important to navigate around any potential immigration consequences to avoid removal in immigration court. An aggressive defense against an aggressive prosecution levels the playing field in a court of criminal law. The immigration and criminal defense attorneys at Uribe & Uribe APLC enable a noncitizen client to have a chance at maintaining his or her life in the United States. In fact the United States Supreme Court agrees immigration concerns are an important consideration for a non citizen client. In Padilla v. Kentucky (2010), the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel's failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. The stakes are raised when a client is a non- citizen and is faced with the decision of accepting a "deal" in criminal court versus risking deportation as a result of the "deal" in Immigration Court. The reality is that a criminal conviction can be the cause of deportation. Post conviction relief in criminal court can mean setting aside a criminal conviction, changing a conviction to another charge, or reducing the charge and most importantly can mean avoiding deportation and removal from the United States. 

Padilla v. Kentucky (2010)

In the United States Supreme Court Case of Padilla, the Supreme Court acknowledged that “for at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea,” and held that the Sixth Amendment guarantee of effective assistance of counsel required criminal defense attorneys to inform their non-citizen clients of the risks of deportation arising from guilty pleas. However, in 2013, the court clarified that its ruling in Padilla did not apply retroactively to defendants whose convictions became final before it decided Padilla. Fortunately in the state of California, these protections have been in effect for at least twenty years prior to the Padilla decision. Prior to the Padilla decision the California Supreme Court in the Soriano decision help that a non citizen defendant must advise of the potential adverse immigration consequences that may attach to a criminal conviction. 

Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) (counsel correctly told the defendant that he “would” be deported for possession of sale conviction, but failure to attempt to plead up to “offer to sell” or “transportation” may be ineffective assistance of counsel). Since People v. Soriano has been binding on criminal counsel and state courts since 1987, the “new rule” announced by Padilla for other jurisdictions was already the “rule” in California for the prior 25 years. People v. Soriano merely reached the correct result 25 years earlier than Padilla. Additionally, People v. Soriano was expressly based not only on the Sixth Amendment, but also on Article I, §15 of the California State Constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court) (1974).

Defending The Rights of Immigrants 

Immigrants accused of a crime face not only penal consequences once they are accused of a crime, but also face immigration consequences as a result of the criminal accusations. Whether it is fighting an active criminal case to avoid immigration consequences or vacating a conviction from a client's record the law firm of Uribe & Uribe APLC takes pride in representing immigrant defendant's in hard to defend cases. In fact case law supports the notion that immigration consequences are an important factor when defending an immigrant defendant in criminal court. For instances, in 2010 the United States Supreme Court case of Padilla v. Kentucky established that criminal defense lawyers must advise non citizen clients about the deportation consequences of a conviction as part of their duties under the Sixth Amendment right to the effective assistance of counsel. In bringing his case Mr. Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to a drug trafficking charge because he had been in the United States for so long and had served in the military in Vietnam. The United States Supreme Court found that Mr. Padilla suffered from his attorney's ineffective assistance of counsel since Mr. Padilla showed both attorney incompetence and prejudice as a result of his attorneys performance. The decision in Padilla v. Kentucky (2010) established a rule requiring attorneys to inform, advise and defend against adverse immigration consequences. Also, in Lee v. United States (2017) the Court considered the standard for proving prejudice, here it was found that Mr. Lee's trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The Court determined that the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt. Like many immigrants in the United States, Mr. Lee had strong ties to the United States. Mr. Lee's parents, who both later naturalized as United States citizens, brought him here as a teenager. Lee graduated high school here and had lived in the United States for more than 30 years, never returning to his home country. Inspite of being in the United States for more than thirty years he never became a United States citizen instead he was a lawful permanent resident and thus subject to mandatory deportation for a drug sale conviciton. It was held that Mr. Lee would have taken a chance a trial even if it was a hail mary since he had so many connections to the United States. It was found that the test for prejudice includes a view of the entire context of the defendant's life. Many of our client's at Uribe & Uribe APLC are in the same situation that Mr. Lee found himself in when fighting for his ability to maintain the life he built for his family in the United States. 

The Legislature finds and declares all of the following:

Vacting Criminal Convictions For Immigration Purposes and Defending Against Removal from the United States 

Uribe & Uribe APLC a Los Angeles Immigration and Criminal Defense Law Firm focuses on representing immigrant clients facing criminal charges as well as non citizen clients facing adverse immigration consequences in immigration court. Erasing a criminal conviction from a defendant's record can often be the only option to avoid harsh immigration consequences such as deportation, exclusion from admission to the United States, and denial of naturalization. The post-conviction process can be difficult but with the experienced team at Uribe & Uribe APLC it can be a possibility that helps keeps a family together. To find out if you are eligible for post-conviction relief contact Uribe & Uribe APLC. 

Si necesita asistencia en Español por favor llame a mi oficina para programar una consulta en Español.     

Uribe & Uribe APLC offers aggressive legal representation for client's accused of crimes and facing removal from the United States. Our attorneys have experience defending clients in DUIs, Felonies, and Misdemeanors, Post-Conviction Relief to avoid adverse immigration consequences, Reducing Sentences, and defending clients in complex criminal matters, immigration removal proceedings, asylum petitions and more.  If you need answers to difficult questions, please do not hesitate to contact Uribe & Uribe APLC to address your concerns and provide you with the aggressive legal representation that you deserve.

Erasing a Criminal Conviction To Avoid Immgration Consequences Pursuant to Penal Code Seciton 1016.5

Upon entering a plea of guilty or no contest in criminal court and if the court does not advise a defendant facing immigrant consequences such as deportation, in immigration court, then Penal Code Section 1016.5 provides the immigrant defendant facing adverse immigration consequences as a result of the plea to withdraw the plea. Once the plea is withdrawn, the court vacates the conviction. Essentially this means that the conviction is erased from the defendant's record. It is important to note that once a plea is vacated United States Immigration Services cannot use the conviction against you in Immigration Court as a reson to remove you from the United States. The reason for this is because there is no longer a removable conviction on your record.

In criminal court, it is important to note that a defendant that succesfully vacates his or her conviction must be aware that  the prosecutor can seek to instate the charges a new. The reason that the prosecutor can reinstate the charges is becuase the procedure or process was flawed (a prejudicial error occured) and now with the immigrant defendant's  correct understanding he or she can now readily and knowinly accept any potential immigration consequences and the immigrant defendant can now choose to accept a negotiated disposition or take the mater to jury trial.  It is important that the conviction be vacated on Constitutional grounds because case law holds that a conviction dismissed or reduced for rehabilative purposes has no affect on immigration proceedings. To be sure to obtain the appropriate advice for your specific situation please contact Uribe & Uribe APLC for a consultation.  

Immigrant Defendants Have a Right To Effective Assistance of Counsel Through Every Stage of Criminal Court

All defendants in criminal court regardless of immigration status are entitled to effective assistance of counsel. If an attorney's conduct falls below an objective standard of reasonablness than a defendant can make a claim against the attorney and may be able to withdraw the plea. This rule was established in the Padilla v. Kentucky decision in 2010. It was held that an attorney's conduct must be objective and reasonable throughout the criminal court process. While most claims may seek to invalidate a conviction based on a plea of guilty or no contest, a defendant may vacate a conviction, even after trial, on the ground of ineffective assistance during plea bargaining. Strategic decisions made by a non citizen's criminal defense attorney is important. Plea bargaining to to an "immigration safe" alternative is important. Accepting an "immigration safe" plea is important to avoid for instance a life time banishment from the United States. Often time an "immigration safe" plea which avoids adverse immigration consequences may require more custody time but in the context of avoiding adverse immigration consequences this can be a better choice. A claim of immigration related ineffectiveness may be presented where, through counsel's error during plea bargaining, in failing to advise the defendant of the adverse immigration consequences of a conviction at trial, the defendant fails to defend against these advise immigration consequences by failing to seek an alternative disposition to avoid them.