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 defedant that is not a United States citizen can have devastating effects many years after the incident. Criminal convictions can cause immigrants to be placed in removal proceedings, be detained for weeks, months, or years in immigration facilities often located hundreds of miles from home, and then result in deportion. 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 assist immigrant defendants that entered an uninformed plea in the past that are now causing adverse immigration consequences.
Penal Code Section 1473.7
On January 1, 2017 California Penal Code Section 1473.7 went into effect, providing people who are no longer in criminal custody with a legal vehicle to challenge old, unlawful convictions. This law 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. 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. 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 communities.
In order to qualify for relief under the law a defendant must no longer be in actual or constructive criminal custody. A penal code 1473.7 motion must also be filed with due diligence. 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 bnefit 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 part 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 a 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.
Penal Code Section 1016.5
If the court did not advise you of potential adverse immigration consequences you may be able to assert 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.
Upon receiving the advisements, the Penal Code Section contemplates a period during which the defendant, without risking the loss of the existing plea bargain, can reconsider its value in light of immigration consequences that will result from it and attempt to negotiate a different bargain that will not have the same consequences. The reason why the California Legislature enacted this statue is to promote fairness to such accused individuals 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, the statute 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 follow this link.
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 immigrant defendants.
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 fire arm 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 deal that do not serve their client's best interest. When it comes to concerns about adverse immigration concerns many judges and prosecutors may see immigration as a collateral issue but 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 a person's life and destroy everything that the client has worked to achieve. At the law firm of Uribe & Uribe APLC we know it is in our client's best interest to not settle for a bad deal that can lead to deportation, exclusion from admission or denial of naturalization later in immigration court, instead it is important to navigate the immigration. 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.
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 Uribe & Uribe APLC takes pride in representing the hard to defend. In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. 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. 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. 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.
