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 conviction. In order to be The attorneys at Uribe & Uribe APLC are here to help you acheive your immigration goals. 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 acheive your post conviction goal. A thourough investigation must be done to determine what you best option is for post conviction relief.

Consequences of a Conviction

A criminal conviction on your record no matter how old the conviction can lead to serious immigration consequences such as deportation, exclusion from admission to the United States, or denial of naturalization. Far too often a criminal defense attorney representing a immigrant defendant client leads his or her client 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.

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/or subject them 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.

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), firearm offenses, etc…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, 8 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. 

The Post-Conviction Process

Vacating a conviction is difficult. 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. 

The first step in the post-conviction process is to obtain the original court file when the plea was first entered. Then the other relevant documents must be obtained such as the Court Reporter Transcripts, TAHL Waiver Forms, Court Minute Orders, the Public Defender's file (or private defense counsel's file), and the District Attorney's File. Although obtaining all of the relevant documents can be trying, the attorneys at Uribe & Uribe APLC have develop strategies in obtaining all of the required documentation for a complete and thoroughinvestigation. Once all of the relevant documentation is 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. 

 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 lawyers to ask every client about his or her immigration status. Often times an immigrant client's biggest concern is protecting his or her immigration situation.  Lawyers cannot take for granted that just because a client speaks English that he or she is a U.S. citizen, nor should they assume that a client who speaks no English at all is a non-citizen.  At Uribe & Uribe APLC we work to protect an accused's criminal defense rights as well as their immigration rights. 

California Law Protects Immigrants in Criminal Court

The reality is that immigrants face a much more severe consequence as a result of being pushed through our State'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.

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 provided a critical opportunity for noncitizens to challenge convictions when the non citizen 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 noncitizens previously convicted of crimes to which they pleaded guilty, and are no longer imprisoned or restrained, 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. People v. Morales 2018.

The legislative purpose of Penal Code section 1473.7 is to "fill a gap in California criminal procedure" by providing a means to challenge a conviction by a person facing possible deportation who is no longer in criminal custody and thus for whom a petition for a writ of habeas corpus is not available: "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 have been served... this omission has a particularly devestating impact on California's immigrant community... many immigrants suffer convictions without having any idea that their criminal record will, at some point in the future, result in mandatory immigration imprisonment and deportation, permanently seperating families... challenging the unlawful criminal convictions is often the only remedy available to allow immigrants an opportunity to remain with their families in the United States. Yet, in California, affected individuals have no way of challenging their unjust convictions once probation ends, because they no longer satisfy habeas corpus' strict custody requirements. For further insight into the California Legislature's reasoning see Public Safet Report on Assembly Bill No. 813 at pp. 4 -5. 

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. If you are an immigrant to this country but have been accused of a crime do not take any chances with your immigration status. In order to protect your immigration status, to prevent you from being deported, removed, or excluded from this country you need aggressive representation that understands how to protect an immigrant’s immigration status in criminal court.  

The United States’ criminal justice system is intended to protect law abiding citizens but often time this can have unintended consequences that hurt the innocent loved ones of immigration defendants. 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.

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 avoid adverse immigration consequences. If you are a non citizen immigrant the stakes are raised even higher since some criminal convictions in California can have harsh immigration consequences such as deportation, denial of naturalization and exclusion from admission to the United States. Essentially there are many different types of crimes that can cause a person to be deported.

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 they 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

Often times a person finds that a conviction that he or she pled guilty to many years ago can come back to haunt them.  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. 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 law that can be used to vacate a criminal conviction is the California Penal Code section 1016.5 Motion to Vacate Criminal Conviction as a result of faulty immigration advisements by the judge or prosecutor. An immigrant not properly and fully advised of immigration consequences at the time he or she enters his or her plea in criminal court is entitled to withdraw the plea. 

Immigrant Status and the Criminal Court Proceeding

Once an immigrant is arrested and accused of a crime the process begins and ends rapidly.  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. 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 an extended time in jail, an immigrant 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. 

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 are different and harsher than the consequences an American citizen faces. These harsh consequences are unfair since current immigration law makes the conviction that one pled to many years ago will cause him or she to be deported to a country they no longer call home. 

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 US Department of Homeland Security works to deport immigrants with criminal convictions on their record no matter how old the criminal conviction.