LOS ANGELES POST CONVICTION RELIEF

One June 23, 2016 the Supreme Court ruled on the Constitutionality of the implemnetation of the Deferred Action for Parents of Americans (DAPA) and the expansion of the Deferred Action for Childhood Arrivals (DACA). Unfortunately, due to the recent passing of Supreme Court Justice, Antonin Scalia, the ruling resulted in a deadlock as the Court was split between conflicting liberal and conservsative Justices. 

The first of two programs under review, DAPA, was announced in late 2014 as an immigration policy initiative under President Obama's administration that aimed to prevent the deportation of as many as 5 million alien residents  under a statute that would defer deportation for parents of a U.S. Citizen or a lawful permanent resident. 

The second program, DACA aims to allow minors who arrived in the United States before their 16th birthday and before June 2010 the opportunity to receive a two- year renewable work permit and exemption from deportation.

These measures endeavored to prevent the seperation of thousands of families across the United States. 

However, the recent deadlock in the ruling of United States v. State of Texas, the future of these thousands of families remains uncertain. Ultimately, as the case moves to a district court for further debate or possibly return to the Supreme Court once another justice has replaced Scalia.

The immigration system seems inconsistent. Some are given another chance to live in the US despite their offenses while others are deported. In determining whether the person should be deported, if the conviction occurred more than 15 years ago what should be considered is evidence of the immigrant wholeheartedly acknowledging his mistakes and showing a significant life change. People come to the US in hopes of living a better life than the one lived in their home country. Sometimes they lose sight of that and end up getting into trouble with the law.  If people are sincere in improving their lives it will show by how they live. Fifteen years is sufficient time to prove one’s earnestness in getting their life together. We are all human and we make mistakes. We should also be given a second opportunity to make things right.

For instance an immigrant who grows up in the United States after escaping poverty in his or her home country can face deportation after establishing him or herself in the United States. This immigration calamity can happen if the immigrant where to be convicted of a deportable offense. Of the many people that have been deported from this country most have some sort of criminal record. The decision for these immigrants with a criminal record to be deported is cause for debate. Some believe that immigration law should be strictly followed. Others argue that an immigrant's rehabilitation should be considered as well. Is it really fair to deport someone for a crime committed more than twenty years ago and after that immigrant defendant has paid his or her debt to society? Like many people regardless of citizenship status, some get in trouble in their youth but ones that are not US Citizens face an even harsher consequence such as deportation. Also like many that have gotten into trouble in their youth, most immigrant defendants change their way of life. Many become loyal employees, become sober, and become committed members of their families contributing to their community. In our current immigration system, having a history of offenses jeopardizes an immigrant’s chances of remaining in the US. When an immigrant commits a crime, whether it is a minor or serious offense, it remains in his record- it becomes a part of his past that stays with him. Even if an undocumented immigrant genuinely changes his lifestyle, making a positive impact on society and not breaking the law, after a conviction his status as an undocumented immigrant is no longer in good standing. 

Cubans have a special privilege that is not given to other immigrants. Because of the Cuban Adjustment Act of 1966 once Cubans are allowed to live in the United States and become legal permanent residents when they set foot on American soil.  For fear of this privilege being taken away since the US renewed “public relations” with Cuba in 2014, there was an increase in Cuban immigration to the United States in 2015.  In December thousands of undocumented Cubans embarked on a dangerous trip across eight countries to the United States’ southern border. This trip continued through January of this year. Cuba’s recent attempts to strengthen its economy allowed Cubans to sell their property, which enabled many Cubans to sell in order to get necessary finances to make the journey.

It is a long route through the eight Central American countries to the US southern border through Mexico. With this alternate trip, Cubans avoid having to cross through Florida Straits, where many have lost their lives or have risked turning back if caught by the Coast Guard, according to the “wet foot, dry foot” policy.

While some countries helped the Cubans make the journey by offering shelter and food, others opposed, denying their pass, holding them up at the border with tear gas and violence. The countries that supported the travelers stated that this was a one-time agreement.

Despite the physical and mental struggle of the trip many Cubans continued their journey in hopes of starting a new life in the United States.

Church leaders are not in danger of being prosecuted by the Obama administration because it gives in to groups that support immigrant rights. The process for choosing to be a sanctuary church differs from church to church. A number of congregations support sanctuary churches by offering different types of aid to illegal immigrants. Church leaders across the nation are contributing to the growth of the sanctuary movement for illegal immigrants. The movement was started in the past, it slowed down, and is developing again since there has not been an immigration reform. Due to gang violence increasing in Central America more immigrants are entering the US illegally. Church leaders nationwide are upset with the Obama administration’s decisions on immigration and have formed a “network of sanctuaries” to help keep Central Americans safe from ICE. Their human rights are violated by raids causing fear among those seeking refuge and also by officials deporting immigrants to an unsafe environment in Central America. At this moment no churches are housing immigrants but many are ready to provide sanctuary for immigrants in need of refuge. More church leaders are interested in offering shelter for immigrant families to protect mothers and children, for these are the immigrants usually in danger of being deported. A church cannot offer legal protection from ICE, however ICE has a policy in which they cannot enter a public school, church, or hospital to take immigrants into custody. Church leaders are driven by their faith to continue offering sanctuary to illegal immigrants though they understand that they might break immigration laws. Out of the small number of cases of churches sheltering illegal immigrants, most of them have gained a stay of removal.

In order for a person who does not speak English to have a case adjudicated in a criminal court of law in the United States the defendant must be provided with an interpreter to assist them. For immigrant defendants that do not speak English the government must provide an interpreter during all critical stages of the case. A defendant's understanding of the proceedings is especially important when a defendant enters a no contest or guilty plea to a crime. The United States and California Constitutions require that before a defendant enters a plea of guilty or no contest to a crime the plea must be made voluntarily, knowingly, and intelligently. If there is no interpeter assigned to the defendant during the proceedings then the defendant can make an argument that he or she did not enter his or her plea according to the law. This type of argument post enter of a plea or post conviction can be made with a writ of error coram nobis or in the form of a Penal Code 1016.5 motion to vacate a conviction for a lack of immigration advisements. For more detailed information on this issue please consult with Uribe & Uribe APLC.

Urgent note regarding the new California driver's license law enacted under Assembly Bill 60. This law enables undocumented folks the opportunity to lawfully obtain a driver's license. In the past few days I have received phone calls and met with several clients who previously obtained a driver's license through illegitimate means. These clients simply want to know if they will gt in trouble with the US Immigration services if they now apply for a driver's license at DMV. The reality is that the DMV will ask if the applicant have ever applied for a driver's license in the past and then can initiate a fraud investigation. What is more troubling to license applicants in this situation is that the US Immigration Services has access to DMV records and can use false claims to US Citizenship against the applicant if they ever choose to apply for Immigration benefits. My advice is for applicants in this situation is to first get a CA Dept. of Justice (DOJ) Live Scan to investigate what appears on his or her live scan record and then consult with an Immigrant Attorney to determine what Immigration consequences they may face if they made false claim to US Citizenship when they first obtained an illegitimate license. The Immigration Attorney would then be able to recommend whether the applicant should see a Post Conviction Attorney to clean up his or her record.

An immigration hold is a civil custody matter that is separate from the criminal proceeding that the defendant has been arrested for.

A “no- bail” holds can be placed on a defendant because of immigration status, parole, probation, or out-of-county warrants. If a client is detained by a hold placed by the Department of Homeland Security’s (DHS) Bureau of Citizenship and Immigration Services, the defendant should seek counsel that is familiar with immigration matters as they pertain to immigrants accused of criminal law violation.

An immigration hold request is often initiated by a call to the immigration officials by local authorities. It is recommended to not answer any questions regarding alienage posed by local or federal authorities. The Department of Homeland Security’s ability to hold without a warrant is limited, for instance a verbal hold must be followed by an administrative warrant within 24 hours. Accordingly a detained non-citizen may be released on bond or conditional parole (i.e., without bond). The process involves the discretion of an immigration official and the action of an administrative law judge.

In short if one is taken into custody and her or she is a non citizen, it is highly recommended they post bail at the local police station or courthouse before they are taken to county jail where ICE and or immigration officials will be ready to interview them. Always if one have a comment or concern please feel to contact me.

Former President Obama made inroads during his tenure. He reduced the time that families are separated while obtaining their green cards. Undocumented immigrants who are immediate relatives of lawful permanent residents or sons or daughters of US Citizens can apply to get a waiver if a visa is available.  

Former President Obama took executive action in what he calls the Immigration Accountability Executive Action. This executive order is an important step to fix our Nation’s broken immigration system. He recognized that millions of undocumented immigrants who live in the shadows but want to live law abiding lives have no way to do so under the current immigration law. President Obama took this action while Congress continues to work to build a comprehensive, bipartisan immigration reform bill.

In order to get relief under this plan strict requirements must be met. For instance eligible immigrants will have the opportunity to request temporary relief from deportation and work authorization if they come forward and pass criminal and national security checks, pay their taxes, pay a fee, and show that they are a parent of a US Citizen or lawful permanent resident on the date of the announcement, are not enforcement priorities and have been in the US since January 1, 2010 or an individual who arrived in the United States before turning 16 years old and before January 1, 2010, regardless of how they are today.

Today inspite of the current administration's posture toward immigration reform, many of these protections have passed constitutional muster and remain in effect today.

Earlier this month 58 percent of voters approved Proposition 47. The measure intends to save tax payers hundreds of millions of dollars a year in reduced prison and jail costs. Under the initiative, savings will be diverted to rehabilitation programs intended to reduce crime. This law calls for crimes such as shoplifting, forgery, fraud, petty theft and possession of small amounts of drugs such as cocaine, heroin and methamphetamines as misdemeanors rather than felonies. Defendants incarcerated can now petition judges to have their felony convictions and sentences reduced as a result of the passage of this proposition.

There is no doubt that Proposition 47 will bring drastic change to California. Essentially this law reduces what were once felonies to misdemeanors in California Criminal Court. However, Proposition 47 does not change immigration law, but would allow immigrant defendants with eligible criminal convictions a chance to have a felony reduced from a misdemeanor in California Criminal Court. This reduction may nor may not help an immigrant defendant in immigration court, but I suspect relief may be had for a defendant when it comes to criminal sentencing in California Criminal Court.

The bottom line is that Federal Immigration Law has many complexities and it is difficult to make a blanket statement saying that the sentencing reduction would offer immigration relief. It is more accurate to announce that Prop 47’s substantial approval by the voters sends a message to prosecutors and judges that petty crimes and drug possession crimes are something that should be dealt with alternative means other than extended jail. In immigration court one could hope that immigration judges and Department of Homeland Security government attorneys understand the will of the voters when applying immigration law to defendants in the above mentioned situations.

Adverse immgration consequences do attach to an immigrant defendant with a first minor drug offense on his or her record.  A single conviction received on or after July 14, 2011 for simple possession, possession of paraphernalia, or another minor drug offense can no longer be eliminated for immigration purposes by withdrawal of plea pursuant to “rehabilitative relief” such DEJ, Prop 36, or Calif. P.C. § 1203.4.  This does not include conviction for being “under the influence.”  In a recent 9th Circuit holding the 9th Circuit Court of Appeals held that "Rehabilitative Relief" will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occured before July 14, 2011.  Instead now, a first conviction for a minor drug offense will make a noncitizen inadmissible and deportable. A permanent resident can be deported, and an undocumented person can be denied application for lawful status and deported.  In other words all immigrant defendants with this type of conviction will be mandatorily detained.  What this means in Los Angeles and other county courthouses is that immigrant defendants facing a First Minor Drug Offense in criminal court cannot take any sort of deal that involves Prop 36 rehabilitation, diversion or anything of that sort where the immigrant defendant would plea to the court.  Instead when faced with this grim reality an immigrant defendant must instead must fight the case through trial, seek an alternative type of charge (not drug related) or negotiate with the District Attorney to have an informal arrangement made with the District Attorney and not the judge in the courtroom. 

California Penal Code Section 1016.5 provides protections for immigrants that are defendants in Californnia criminal court.  Essnetially  this law ensures that immigrant defendants enter a plea with the understanding that they could be deported, be denied naturalization, and or be excluded from the United States.  This law enacted in 1978, was enacted by the legislature to address a wrong that the California legislature recognized.  The California Legislature back in 1978 found that too many immigrants were entering pleas that harmed their interests in immigration court.  Today, courts are very careful to ensure that immigrant defendants are properly advised.  In being very careful that immigrant defendant's are properly advised most judges and courts required that a defendant completes a Tahl Waiver form, where a defendant would have to essentially initial boxes next to the right or advisement given to prove that the defendant recognizes and acknowledges the waiver.  When courts fail to advise then California Penal Code 1016.5 provides for a remedy and allows for an immigrant defendant to withdraw their plea.  California Penal Code 1016.5 is a useful law that provides a remedy for immigrant defendants that entered a plea in criminal court that may harm their fate in Immigration Court.

The term "expungement is not an unfamiliar one in criminal law. Rather a common question from clients seeking to clean their record is, "what can an expungement do for me?" In its strictist definition, an expungement refers to having your criminal record dismissed or sealed, making the records unavailable to State or Federal databases. Although an expungement does not completely erase one's criminal record, it does offer multiple benefits. For example, when applying for a job one may honestly reply that they do not have any previous convictions if asked by a potential employer. Expungements also offer assistance in receiving a loan, federally funded benefits such as food stamps, and even when adopting a child.

Unfortunately, in the immigration process expungements are not quite as effectove. In immigration court, criminal records will always be present and can definitely effect ones status in the United States. In order to have a conviction be deemd harmless in an immigration proceeding that conviction would have to be vacated under constitutional grounds.

That being said, how does one receive an expungement? Although there are some convictions that are NOT eligible for a dismissal through an expungemen, there is a proscribed manner in which eligible convictions can be expunged. Under California Penal Code Section 1203.4, one can petition the court to dimiss a conviction. The requirements are delineated in the penal code but essentially require that all the terms of probation be completed and that the petitioner is not on probation for any new offenses. 

Of course it is always advisable to consult with a licensed California Attorney before seeking the remedy of expungement.

The vast majority of people in our State’s criminal justice system are there as a result of drug related crimes.   Often a hidden consequence of a drug conviction in criminal court is an extremely harsh immigration consequence such as deportation, exclusion from admission to the United States, and or denial of naturalization.  Because of these hidden dangers it is necessary to be mindful during the plea deal negotiation process that takes place between a criminal defendant and the district attorney.   When negotiating a criminal drug matter it is important to not compromise and accept a consequence that may appear to be in the best interest of the defendant but can in fact can work against a defendant.  For instance Proposition 36, a law passed by this State’s voters requires that people with minor or petty drug offenses have the option of being placed in a drug rehabilitation program as proscribed by the judge in the criminal case.  This is a good option for people with drug problems because it provides an option for the defendant to complete a rehabilitation program to have the case and charges dismissed.  Another option that is frequently provided to narcotic offenders is something called deferred entry of judgment; the conditions of this program are often negotiated between the district attorney and defense counsel.  (Conditions typically are to attend narcotics anonymous, do community labor, and pay a restitution fine.)  Once all the conditions are met after about a year then the plea is withdrawn and the case is dismissed.  These above mentioned options are good options are good options for people without drug convictions but for immigration purposes they are not because once a person pleads guilty to a drug conviction the conviction is on one’s record permanently thus making the immigrant defendant deportable under the immigration drug laws in US Immigration Code.  If a defendant were to plead guilty to a drug crime and have a drug related conviction on his or her record then in order to avoid immigration consequences the conviction must be vacated.  Although a conviction can be vacated several different ways, the legal process to have a conviction vacated is akin to fighting an uphill battle thus it is better to avoid a drug conviction in the first place.

Expunging a Drug Conviction?

Effective January 1, 2016, California Penal Code § 1203.43 will provide immigration relief for those with qualifying drug convictions. This new California drug law will help defendants avoid catastrophic immigration consequences for minor offenses. This law applies to anyone that has succesfully completed deferred entry of judgment (DEJ) will be able to withdraw the plea, in a way that is expected to work for immigration purposes. To withdraw the plea, the person only needs to show that DEJ was successfully completed and the case was dismissed. There is no requirement to show prejudice. People who previously completed DEJ, and those who complete DEJ in the future, will qualify for this relief.

A great deal of my practice is defending people with immigration concerns.  Over the course of my career I am happy to report that I have been able to help a number of people avoid harsh immigration consequences such as deportation or I have been able to successfully vacate convictions that would cause a person to be deported from this country.  I find these cases to be very personal with high stakes since it is very difficult for a person essentially living in this country just as any other American would to understand that a crime that they plead guilty too can cause them to be deported thus changing their entire lives.  A major category of deportable crimes in US Immigration law are "crimes of moral turpitude" as described in US Immigration Code.  When I explain to my clients what a "crime of moral  turpitude" is, I explain that it is a crime involving dishonesty and theft.  Ultimately a government prosecutor in immigration court will have to prove to an immigration judge that a conviction in California state court is a "crime involving moral turpitude".  In California Criminal Court it is best to keep the record of conviction bare of any mention of the details a crime that a client has pled guilty to.  When the record of conviction is bare of details of the crime, then a prosecutor in Immigration Court will not be able to use the record of conviction in a deportation proceeding against the detainee.

A large part of my practice has to do with defending non citizens in criminal court.  In order to effectively represent a non citizen client one must take into account all of the immigration laws that may affect the client.  If a non citizen where to enter a plea for a crime that has adverse immigration consequences then the non citizen defendant would be basically be facing deportation or exclusion from this country.  One method to avoid a harsh immigration consequence for a conviction on one's record is to seek to have a guilty plea vacated pursuant to CA Penal Code 1016.5, failure to advise of harsh immigration consequences.  Typically for newer cases, within the past ten years, the court record will show that the non citizen defendant filled out a Tahl Waiver Form, thus acknowledging that they were given immigration consequence advisements.  But in cases that are older, for instance over ten years, often times the court record will not be complete either because a defendant was not advised appropriately as required by law, or because the court records have been destroyed.  If a court record has been destroyed, then a prosecutor has a tougher time showing that a defendant has been appropriately advised.  What I have been coming across more often is that prosecutor's look for the judge or commission that used to preside in the courtroom where the and have him or her write a declaration stating that it is his or her practice to always advise defendants of adverse immigration consequences.  I believe that the reason why prosecutors are doing this is because CA PC 1016.5 provides that prosecutors have a duty to show that a non citizen defendant was appropriately advised.

In my line of work I come across many different situations where a person can be accused of committing a crime.  A situation that I feel is unfair is when an undocumented worker is charged with using some sort of fake document to work.  An example is a false social security card, fake driver's license, or a fake birth certificate.  I feel that in many situautions this is unfair since often times an undocumented worker with no access to government entitlements has no other option but to work to support his or her family.  Aside from the unfairness in prosecuting a crime like this in criminal law, I personally find this situation disagreeable to my own sense of fairness since it creates a situation where an employee can become exploited by his or her employer.Addressing the criminal law aspect of this situation, I find that the prosecution of these crimes is unfair since an undocumented worker who is working to support a family should not be prosecuted since the National Immigration Laws of our country are in such dissarray.  Most of the undocumented workers that can get a lawful work permit would do so if given a way.  Without a meaningful way to apply for a work permit the undocumented worker hhas no other option than to seek employment with fake documents.  If one where to fabricate a social security number and then create a fake document to show an employer, the defendant would be charged with crimes associated with false presentation of documents to gain a benefit.  Typically these crimes are very serious crimes and are charged as felonies that can carry lengthy jail sentences.  When a case like this is before me there are usually no affirmative defenses since it is very easy to prove that one worked with a false document.  For instance all that the prosecutor would have to do is show a pay stub with the false information that the undocumented worker provided to the employer.  A good strategy for one of these cases is to seek a type of civil compromise to pay a victim back (if there is a victim that had the number used by the undocumented immigrant) or to seek a plea deal for a charge that would not affect the immigration situation of the defendant. 

The issues with the deportation process would be resolved rationally by implementing immigration laws that were in effect 20 years ago. These laws treated immigrants with fairness. Every immigrant with a crime had a meaningful hearing with the judge where he presented the facts, showed proof of rehabilitation, and explained how he contributed to the community, employers, and family. Then the immigration judge decided who would be deported. Some are in support of the deportation of all illegal immigrants who have a criminal record. However, this is not the best viable solution as the current process for deportation is faulty and expensive. When a person is arrested he or she will undergo a background check. Those who are undocumented are put in a detention center. They are detained until an immigration official decides if their crimes are reason for deportation. According to the federal government, deportation programs are helpful in defending us from dangerous criminals. But this is misinformation. The truth is that detention is not necessary for deportation. At a court hearing a judge or official decides if a person will be deported. Holding someone in a detention center until their court date is a needless expense. In the last 7 years tax payers paid millions of dollars that were used daily to keep immigrants in detention. Because there are not enough judges to speed up the process some detainees have to wait in detention for a few years for their trial in immigration court. For this reason more for-profit prisons have been created. Most detention centers and immigration centers are owned by for-profit corporations. Another problem with holding noncitizens in detention is that not all who are put in detention have committed serious crimes. For example, almost half of the detainees in 2013 had charges dropped or were found not guilty. Hiring more judges and speeding up the process would cut down on needless expenses for those who do not need to be detained. There is also an issue with immigration law. Crimes under this law are at times classified as more serious than what they really are. In addition, under retroactive basis those who committed crimes two decades ago are automatically on the list for deportation. This in turn affects people in their 60’s with crimes that were relatively minor during the time of occurrence.

A common question that I am asked by my clients that are non- citizens (meaning Green Card holders, work permit holders and even people without any citizenship documentation) is what happens if I am convicted of a misdemeanor.  I find that a good number of my clients in this situation are under the wrong impression that just because a crime is considered a misdemeanor (and not a felony) there are no immigration consequences. 

In reality, the immigration law of this country is very complicated.  The Immigration Code (the laws that determine if someone can stay in this country) does not even mention the word misdemeanor or felony.  Instead the immigration code enumerates or highlights certain types of crimes in California Criminal Law that can cause a non- citizen defendant to become ineligible for immigration benefits (meaning to become a citizen, resident or get a work permit).  (These categories of offenses are complicated to understand and if you are a person accused of committing a crime and are concerned with your immigration situation then it is best to consult with a criminal defense attorney that understands how to navigate immigration and criminal law.)  A common example of a crime that can make someone ineligible for immigration benefits is a domestic violence conviction such as CA PC 273.5 (commonly referred to as inflicting corporal injury on a spouse).  When a defendant is accused of this crime a good strategy in lieu of out right fighting the allegation is to seek an alternative conviction that does not affect a client’s immigration situation, a good example of this is to plead to a simple battery charge such as CA PC 242.  The immigration code makes certain offenses with immigration consequences because the congress indicated in the immigration code that it does not want people with certain convictions to be able to receive immigration benefits.  Common examples of crimes (regardless if they are misdemeanors or felonies) that can cause a person to suffer grief in immigration court are crimes involving firearms, sex crimes, drug crimes, crimes of violence and crimes against the moral turpitude of the United States.  Another related issue that arises when one has a deportable conviction on his or her record is the age of the conviction.  Often times a person that has recently made contact with immigration officials, for instance upon returning from a trip out of the country and seeking re entry, and has a deportable offense on his or her record (no matter how old the conviction is) can cause the person with the deportable offense to suffer adverse immigration consequences such as deportation, exclusion from admission to the United States and or denial of naturalization.  In order to get out of this situation often times the only hope that the person has is to vacate the conviction. 

For the reason above mentioned it is important that any immigration reform take into account the thousands of people lawfully living in this country that may have a blemish on their record for actions that took place many years ago.  

This entry focuses on how the Moncrieffe v. Holder (citations) decision plays in criminal defense in California Superior Courts.  Essentially recent case law ie., Padilla v. Kentucy (citations) has held that a criminal defense attorney must protect against harsh immigration consequences.  The Moncrieffe decision is helpful to criminal defense attorneys because it reaffirms a tool that savy criminal defense attorneys have long utilized in defending non-citizen defendants, keeping the record of conviction as vague and generic as possible.  A good example is instead of pleading guilty or no contest to a domestic violence charge of CA PC 243(e)1 or CA PC 273.5, I attempt to bargain for a straight battery charge of CA PC 242 because of the lack of domestic violence language in the statute.   This lack of language related to domestic violence helps the immigrant defendant because federal immigration law requires immigrants with criminal convictions to fall into a category of deportable offenses before they can be deported.  With a generic and vague record of conviction an immigrant defendant will not fall into a category that will cause harsh immigration consequences.  Federal courts have looked to determine whether the crime an immigrant was convicted of categorically fits with the generic federal definition of a corresponding aggravated felony in immigration law Gonzalez v. Duenas- Alvarez (citations).  Further courts have found a categorical match of a state crime to an aggravated crime in federal law only if a conviction of the state offense “necessarily” involved facts equating to the generic federal aggravated felony offense.  Shepard v. United States (citations).  The current trend in federal law to require a more specific and analytical approach in considering weather an immigrant with a “criminal” record should be deported is good for our country since it requires a more wholestic approach in determining who should be deported and who should not be deported.

 In my practice I come across a number of clients that need “post conviction relief” for the sake of avoiding harsh immigration consequences.  A common example is an immigrant client who is a “non citizen” for instance a “Green Card” holder, commonly called a “lawful permanent resident” that after becoming a “Green Card” holder is convicted of a crime considered by the United States Citizenship and Immigration Services (USCIS) an aggravated felony, or a crime involving moral turpitude or a crime of violence.   A common example of crimes that fall into these categories are the theft crimes, domestic violence crimes, sex crimes, and even drug crimes.  Once a “Green Card” holder has this conviction on his or her record his or her will face deportation or removal from the United States.  Unfortunately once in this situation has very limited options.  One tool that I use to help clients in this situation is the Habeas Corpus Writ.  The Habeas Corpus Writ has been around since the times of “Olde English Common Law” but has its place in contemporary American Law.  A Habeas Corpus Writ is a remedy that can be used to help people that are in custody.  This writ can be used in a very limited number of situations but when applied correctly it can be used to vacate a conviction that would cause an immigrant defendant to be deported.  A classic example is a client that enters a plea of no contest or guilty to a crime that could cause them to be deported unbeknownst to them.  Typically a client that entered this plea relied on bad advice from his or her attorney when they were in midst of fighting the case.  If the defendant’s attorney failed in his or her duty to provide competent representation this may provide an avenue for a Habeas Corpus Writ to have a judicial review of the procedure of how the plea was entered.  One important element that is necessary to file a Habeas Corpus Writ is the element of custody.  In order for a court to review a matter on a Habeas Corpus Writ petition the court must have jurisdiction.   This element is satisfied if the defendant is currently in jail, still on probation, or in violation of probation.   Once a Habeas Corpus Writ is filed, it is reviewed by the court, and if the court wishes it can call a hearing to address the issues raised in the writ.  A successful writ will have the plea thrown out and thus immigrant defendant will no longer face the harsh immigration consequences as a result of the plea.