Immigration Consequences of Criminal Convictions

If you are not a U.S. citizen and have been convicted of a crime, you could face deportation, a bar from naturalization and denial of reentry into the United States as a result of your conviction. The reality is that not every conviction will lead to deportation. The attorneys at Uribe & Uribe APLC are here to help you acheive your immigration goals, whether that means, maintaining your legal status or obtaining legal status. The first step in the post conviction process is examining the circumstances of your conviction to determine what post conviction vehicle or motion best suits your needs. In layman's terms  your past conviction or convictions will be examined from every angle to ensure you have the best chance to achieve your post conviction goals. A thorough investigation must be done to determine what you best option is for post conviction relief. A thorough investigation involves an in depth examination of all of the court related documents in your case. In a typical case, those documents include the court reporter's transcript, your attorney's file, the court's file, as well as other evidence that may lead to a cause of action to be prosecuted in a motion to vacate. 

Consequences of a Conviction

A criminal conviction on your record no matter how old the conviction is can lead to serious immigration consequences such as deportation, exclusion from admission to the United States, or denial of naturalization. Unfortunately this consequence is one that disproportionately affects non citizen immigrant defendants in criminal court. Far too often a criminal defense attorney representing a immigrant defendant client leads his or her clients into immigration peril by advising the client to plead guilty without taking into account the adverse immigration consequences that will befall them.  Clearly this type of representation falls below a standard of professional care that can lead to a claim of ineffective assistance of counsel against the attorney that misled the immigrant client. If you have a conviction on your record it may be necessary to vacate or modify the terms of the conviction so that you do not suffer harsh immigration consequences in Federal Immigration Court. The role of post conviction counsel in this scenario would work to either completely vacate your conviction or short of that work with the prosecutor to seek an immigration neutral plea in place of the offending conviction on your record. 

WHat types of criminal convictions can lead to immigration consequences

It is important to note that any criminal conviction—and in some cases, criminal conduct, even if it does not lead to a conviction—could have consequences for the immigration status of a noncitizen or immigrant defendant. The reason is that many decisions as to whether to grant a particular immigration benefit—including naturalization—are left to the discretion of federal immigration authorities. Criminal conduct or a criminal conviction of any kind can be taken into account by those authorities in making discretionary determinations. Certain classes of convictions trigger automatic provisions of immigration law which render a noncitizen deportable (or “removable”) and possibly subject a non citizen to mandatory detention. Many of those same classes of convictions will make a noncitizen ineligible for discretionary waivers or other forms of relief that may allow them to stay in the country even if they are considered deportable. In making a determination of whether your criminal conviction will cause adverse immigration consequences an investigation into the applicable immigration law must be done. Below is a brief overview of common crimes that cause adverse immigration consequences. 

Catagories of Conviction that Have Immigration Consequences

Aggravated Felony (AF): This will be the worst category of criminal offenses for immigration purposes for lawful permanent residents (LPRs) and individuals seeking asylum. Its name is misleading because the offense need be neither “aggravated” (as that term may be commonly understood) nor a “felony” under state law for it to be an “aggravated felony.” The list of what this category includes is long, but the most common offenses charged as aggravated felonies are: murder, rape, sexual abuse of a minor, drug-trafficking crimes, and certain subcategories of crimes which meet a certain threshold: for example “crimes of violence,” “burglary” or “theft offenses” for which a sentence of 1 year OR more is imposed, or “fraud” offenses in which the loss to the victim exceeds $10,000. When a noncitizen’s conviction falls into this category, the consequences are severe: the individual will face mandatory detention, almost certain deportation, will be ineligible for virtually all forms of relief, and he or she will face criminal penalties of up to 20 years in federal prison for illegal reentry after a conviction for an aggravated felony.

Controlled Substances Offenses (CS): This is another category that will result in drastic immigration consequences for most noncitizens. This category encompasses offenses “relating to” a controlled substance as defined by federal law, and it therefore encompasses simple possession and distribution offenses involving substances covered by federal drug schedules (if the substance is regulated only by the state, it is not covered). A conviction in this category often renders undocumented immigrants ineligible to apply for legal status (and therefore subjects them to mandatory deportation).

Crimes Involving Moral Turpitude (CIMT): A broad category of criminal offenses, this category is as vague as its title suggests. One often feels that the courts’ take on “moral turpitude” is the same as their take on “obscenity”: they know it when they see it. However, there is considerable case law guiding this analysis. Generally, the following types of crimes are found to be CIMTs: offenses involving theft or an intent to defraud; offenses involving intent to cause bodily harm, or offenses involving recklessness that result in serious bodily harm; and most offenses involving sexual conduct. CIMTs do not render a noncitizen removable in every case—the impact of a CIMT will depend on the immigration status, timing of the offense, prior criminal record, and actual and potential sentence for the offense.

Crime Against Children (CAC): Another broad category of crimes that encompasses any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that qualifies as maltreatment, and harms a minor’s mental or physical well-being, regardless of proof of actual injury or harm to the child.

Other categories of offenses are more specific: crimes of domestic violence (CODV), and firearm offenses are just a couple of examples. Many of these categories of offenses will have their greatest negative impact on noncitizens who have been lawfully admitted to the country, especially lawful permanent residents (LPRs). Unlike Aggravated Felonies, these categories of offenses will often, but not always preserve a lawful permanent resident’s eligibility for discretionary waivers of deportation.

With the varying degree of crimes and their applicable category it is important to engage in competent counsel when faced with allegations of criminal misconduct. The attorneys at Uribe & Uribe APLC  decades of experience in defending hard to defend clients facing criminal charges in Superior Court and Immigration Removal Proceedings in Immigration Court. 

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 has provides a critical opportunity for noncitizens to challenge convictions where the non citizen defendant has failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime. Section 1473.7 also creates a vehicle to enable both noncitizens and U.S. citizens to raise claims of actual innocence, even after custody has ended. For more information about Penal Code Section 1473.7 click here.   

Penal code section 1473.7 allows non citizens previously convicted of crimes to which they have pleaded guilty, and are no longer imprisoned or restrained from, to bring 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. See the ruling in People v. Morales (2018) for more information.

The legislative purpose of Penal Code section 1473.7 is to fill a gap in California criminal procedure by providing a means to challenge an unlawful conviction by a person facing possible deportation who is no longer in criminal custody. Thankfully Penal Code section 1473.7 has filled a gap in the law where a petition for a writ of habeas corpus is not available to a defendant for procedural reasons.

The reasoning for Penal Code section 1473.7 is because it was found that California lags far behind the rest of the country in its failure to provide its residents with a means of challenging unlawful convictions after their criminal sentences has been served. It was recognized that this omission has a particularly devestating impact on California's immigrant community. It was found through sociological research that many immigrants suffer minor criminal convictions without having any idea or understanding that their criminal record will, at some point in the future, result in adverse immigration consequences such as mandatory immigration imprisonment and deportation. Further it was found that permanently seperating families hurts not just the individual and the family involved but the entire community as a whole. It was therefore reasoned that challenging the unlawful criminal conviction for a non citizen defendant is often the only remedy available that allows immigrants an opportunity to remain with their families in the United States. 

The Constitution Protects Everyone

The United States Supreme Court has held that a criminal defense attorney must protect the immigration rights and situation of an immigrant client. Padilla v. Kentucky (2010) The attorneys at Uribe & Uribe APLC understand the duty owed to immigrant defendants. In order to protect one's immigration status it is imperative to engage aggressive legal representation that understands how to protect and navigate both the criminal and immigration court process.   

The United States’ criminal justice system is intended to protect law abiding citizens but often time this can have unintended consequences that hurts the community.  When a non-citizen is convicted of a crime exposing him or her to potential removal, Immigration and Customs Enforcement, or ICE, will likely lodge a removal detainer against the immigrant. Usually, this detainer will remain in place until the sentence is complete, at which point the non-citizen will be released to ICE and taken to an immigration detention center. 

Uribe & Uribe APLC is skilled in setting aside, vacating, or reducing criminal convictions so that our client's will not face deportation, removal or exclusion from the United States.

the post conviction process

Vacating a conviction can be a very difficult process since often times a conviction is old and the records from the case have been lost or destroyed. As a result of this we are left with no evidence to review to discover a possible argument to vacate the conviction. Put in other words, without a court file to review, it is difficult to prove that a prejudicial error occurred. 

It is difficult because in order to vacate or erase a criminal conviction we must go back and change a judicial order that has been officially entered in the past. Often times a petitioner is charged with bringing forth a motion that alleges some sort of prejudicial error that occured causing the non citizen defendant to accept the negotiated plea. 

The first step in the post-conviction process is to obtain the original court file of the conviction. In addition to this, other relevant documents must be obtained such as the Court Reporter Transcript of the Plea, applicable TAHL Waiver Form, applicable Court Minute Orders, defense counsel's file (either from the Public Defender's Office or from private defense counsel), and applicable evidence from the District Attorney's Office.

investigation of history of plea

Although obtaining all of the relevant documents can be trying, the attorneys at Uribe & Uribe APLC have develop strategies to succesfully obtain most if not all of the required documentation for a complete and thorough investigation. Once all of the relevant documentation are obtained, an analysis of the evidence is done along with an analysis of current case law to determine what legal arguments can be used to attack the validity of the plea. 

a non citizen's disproportionate impact resulting from conviction

The reality is that immigrants face a much more severe consequence as a result of being pushed through the State of California's criminal justice system.  As a result the United States Supreme Court has found that noncitzen defendants in criminal court are owed a duty by their attorneys to have their immigration interests protected and their concerns about deportation addressed. Uribe & Uribe APLC has helped families remain intact as a result of aggressive legal representation to erase, set aside, vacate, or reduce a criminal conviction that could have been devastating to the client's family.

Immigration Status and Criminal Convictions

Any non-citizen, regardless of immigration status, is subject to deportation or removal. It is therefore incumbent upon criminal defense counsel to perform a thorough intake and investigate a client's immigration status. A simple question such as asking where a defendant was born can avert disaster for the non citizen defendant. Although once armed with this information, defense counsel must act to navigate the adverse immigration consequences of the criminal conviction. Often times a non citizen's biggest concern is protecting his or her immigration status or maintaining his or her life in the United States. Competent defense counsel should not take for granted that just because a client speaks English "like any other American" that he or she is a U.S. citizen nor should they assume that a client who does not speak English is a non-citizen. At Uribe & Uribe APLC we work to defend an accused's innocence as well as his or her immigration rights. Often with a non citizen defendant adverse immigration consequences are by far the most grave consequences that a non citizen defendant can suffer as a result of a criminal conviction. 

Now with newly enacted Penal Code Section 1473.7 it can be argued in a post conviction hearing that the prejudicial error that occurred was in the misunderstanding and failure to recognize the adverse consequences by the non citizen defendant. If you would like to learn more about Penal Code Section 1473.7 please follow this link. 

Felonies and Misdemeanors

If you are a non citizen accused of a serious felony or misdemeanor it is important to immediately protect your rights and hire aggressive legal representation to assist you in navigating both the criminal justice and immigration court system so as to avoid adverse immigration consequences resulting from the criminal allegations. If you find yourself in this situation the stakes are raised even higher since a criminal conviction can maintain harsh immigration consequences such as deportation, denial of naturalization and exclusion from admission to the United States. Knowledgeable legal counsel is necessary when confronting allegations in criminal court since immigration law is complex and there are myriad of different types of crimes that can cause a non citizen to suffer adverse these immigration consequences. 

Deportable Crimes

Whether a criminal conviction is a felony or misdemeanor typically does not matter to an immigration judge that is deciding whether to deport an immigrant convicted of a crime in California Superior Court. The most important factor that an immigration judge considers is whether the crime is a deportable offense under the Immigration and Nationality Act also known as the INA. The INA describes and categorizes convictions as either, crimes of moral turpitude, theft crimes, drug crimes, and gun crimes (to just name a few) and if an immigrant non-citizen has a qualifying crime he or she could then suffer immigration consequences such as deportation, denial of naturalization, and or exclusion from admission to the United States. When facing a criminal accusation it is important to navigate both the criminal and immigration process so as to avoid both penal and civil immigration consequences.

Avoid Immigration Consequences as a Result of Old Criminal Convictions

There are four general categories of crimes that expose a non-citizen to removal.

Crimes Involving Moral Turpitude

Making false representations
Arson
Blackmail
Burglary
Embezzlement
Extortion
False pretenses
Forgery

Controlled Substance or Drug Crimes

Transportation of Drugs
Possession of Drugs
Sales of Illicit Drugs

Firearm Offenses

Brandishing a firearm
Possession of a firearm by a felon
Carrying a concealed firearm

Aggravated Felonies

Manslaughter
Murder
Robbery
Burglary
Possession for sale of a controlled substance
Attempt Charges

The Immigration Legal Resource Center provides an informational resource chart for legal professionals to reference when considering applicable immigration consequences of a criminal conviction. 

Motion to Vacate a Conviction per Penal Code Section 1016.5

A non-citizen accused of a crime in our criminal court system must protect his or her immigration interests before entering a plea to a criminal conviction. Unfortunately a non citizen defendant can come to discover that a conviction that he or she pled guilty to many years ago can come back to haunt them. Penal Code Section 1016.5 can be used to vacate the offending conviction on the record.

A post-conviction motion to vacate a conviction can be used to vacate a conviction from a defendant's past that now causes harmful and unfair immigration consequences. A non citizen defendant can move the court to vacate a conviction if a criminal court judge does not advise a non citizen defendant of the tri parte immigration advice of deportation, denial of admission, or bar to naturalization and if the non citizen defendant suffers one of those consequences. The reasoning behind Penal Code Section 1016.5 is to ensure that non- citizen defendants are aware of the immigration peril before he or she enters their plea. To determine whether you have a valid argument for post conviction relief persuant to Penal Code Section 1016.5 it is important to analyze the totality of the available court record. Even if part of the advisement provided to you is inaccurate or incomplete you may be entitled to Penal Code section 1016.5 relief. It is also important to consider that 1016.5 advisements must be provided to a non citizen defendant just prior to the entry of the plea. In short if the plea is not done as proscribed by law then on defendant's motion the plea must be vacated. 

Immigrant Status and the Criminal Court Proceeding

It is recommended that a non citizen arrested and accused of a crime seek competent counsel that can advise on both the criminal and immigration aspect of the case. For instance if you are arrested and accused of a crime and have no legal status it is very likely that once you are in police or sheriff custody an immigration hold will be placed on you. For this reason it is recommended in most situations that a non citizen defendant post bail. The reason for this is simple since the less time you spend in custody the less likely a non citizen defendant will come in contact with U.S. immigration officials. Once bail is posted then a notice to appear in court will be issued with a court date typically several weeks after the date of arrest. To learn more about the bond process for non citizens please follow this link.

Once out of custody it is important to engage in competent counsel that can navigate both the criminal and immigration systems. Once the case is filed by the local district attorney a defense attorney can then focus on attacking the charges and seeking an immigration neutral plea. If you are a legal resident or a work permit holder then it is very likely that you will lose your work permit and legal resident status if you are convicted of the crime you are accused of. Importantly the criminal court process must play itself out before any sort of adverse immigration consequences will take hold. Because of this it is important to make the right decisions with your immigration goals in mind.  

Facing Deportation Because of Criminal Conviction

Unfortunately when a defendant is in front of a judge and facing consequences such as a significant exposure in custody a non citizen defendant does not consider the cost of how a criminal conviction on his or her record will affect their immigration case. Many different types of charges that are either felonies or misdemeanors in Superior Court will cause an immigrant defendant to be deported in Immigration Court. As a result of the complex nature of immigration law, various laws have been enacted to ensure that non citizen immigrant defendants California Penal Code Section 1016.5 was enacted to protect the immigration interests of immigrant defendants. For instance Penal Code Section 1016.5 allows for a defendant to fully investigate the consequences of a conviction so that he or she can fully understand how the plea offer they are accepting will affect their immigration status. More recently enacted Penal Code Section 1473.7 works to remedy a wrongful of a conviction that was entered erroneously by the non citizen without a meaningful understanding of the long lasting effects of the immigration consequences of a conviction.   

Immigration Consequences and Criminal Convictions

It takes a special skill set to understand how to defend immigrant defendants in state criminal court. The attorneys at Uribe & Uribe APLC understand how to defend immigrants and non-citizens accused of crimes. The reality is that non-citizens face a tougher time in criminal courts than citizens. Non-citizens face increased scrutiny through the Secure Communities program initiated by the United States Department of Homeland Security. As a result of this increased scrutiny non-citizens face deportation while a citizen would simply be cited a released. 

Immigrants in Criminal Courts Face Unfair Consequences that Non Immigrants Do Not Face

The consequences a non- citizen faces in criminal court have been found to be harsh when considering that just minor offenses that would typically lead to a slap on the wrist for most people can cause the life of a non citizen to be turned upside down with a removal from the United States. The unfortunate reality for a non citizen defendant is that a conviction many years ago will cause grief in immigration court now harming not only the non citizen but also his or her family and greater community. 

The attorneys at Uribe & Uribe APLC take pride in addressing immigration law concerns in a criminal prosecution as well as defending against deportation in Immigration Court. More specifically we take into account one's own specific immigration situation when representing an immigrant in criminal and immigration court.

Immigrant Defendants Face a Special Consequence

What can be harmless misdemeanor or citations for a citizen can create a life changing calamity for an immigrant that cannot return to his or her home country.  Criminal convictions have serious and often tragic collateral consequences for non-citizens, namely deportation, removal from one's home and denial of naturalization. This is especially true today because the government is ramping up immigration enforcement and aggressively searching for non-citizen inmates who are subject to deportation. The United States Department of Homeland Security works to deport immigrants with criminal convictions on their record no matter how old the criminal conviction.