Uribe & Uribe APLC

Los Angeles Post Conviction relief Attorney

The attorneys at Uribe & Uribe APLC serve clients from all walks of life that are facing adverse immigration consequences as a result of a criminal conviction. Our mission is to provide a zealous agressive defense for non citizen defendants facing adverse immigraton consequences. These collateral immigration consequences such as denial of an immigration benefit or removal from the United States stemming from a criminal conviction are often the single most important aspect of a non citizen defendant's defense against criminal charges brought forth in the Superior Court. The attorneys at Uribe & Uribe APLC recognize that there is a vast community of under served individuals that must navigate both the California criminal court system as well as the United States federal government's immigration court system. We are here for them. This website is dedicated to educating non citizen clients who are will or potentially will suffer adverse immigration consequences so that they can avoid those consequences to continue to be productive members of society. If you would like legal advise for your particular immigration related case or criminal case that may cause adverse immigration consequences please contact Uribe & Uribe APLC  to schedule a consultation.  

Uribe & Uribe APLC  focuses its criminal defense section of its practice on defense of non citizen defenants in California Superior Court. The attorneys at Uribe & Uribe APLC are dedicated to put forth an aggressive defense focused on achieving the client's desired outcome even if that is avoiding adverse immigration consequences. The reality is that for many non citizen defendant's the desired outcome in a criminal court matter equates to avoiding adverse immigration consequences as well as defending against criminal allegations to avoid penal consequences. 

For non citizen defendant's in criminal court the collateral consequences associated with how a criminal conviction and sentence will affect one's immigration status often outweighs the penal consequence associated with the conviction. The United States Supreme Court has recognized that the most serious consequence a non citizen defendant can face in a criminal proceeding is the immigration consequence attached to the criminal conviction. The reality is that a non citizen defendant facing criminal allegations has a necessity to no only avoid criminal consequences associated with the conviction but to also avoid adverse immigration consequences such as deportation and removal from the United States. For instance having a loved one removed from the United States can be devestating to an entire family emotionally as well as financially. 

 Why Seek Post Conviction Relief?

An important consideration for a non citizen defendant is how a criminal conviction will affect their immigration status which in turn has a direct impact on whether the non citizen defendant can continue his or her life with their family in the United States.  It is for that those reasons the attorneys at Uribe and Uribe APLC takes pride in defending non citizen immigrant clients that are facing serious consequences in immigration and criminal court.

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. Criminal convictions for a non citizen defendant can have much more devastating effects many years after the conviction. Even relatively minor criminal convictions can cause immigrants who have spent the vast majority of their lives in the United States to be placed in removal proceedings in immigration court. In addition to the penal consequences of the criminal conviction, a non citizen convicted of a felony or misdemeanor may be subject to immigration detention by federal immigration authorities.  As a result of a criminal conviction a non citizen defendant can be detained for weeks, months, or years in immigration facilities. Unfortunately these immigration detention facilities are often located hundreds of miles from the detainee's home and family. Exasperating the situation further most detained non citizens end up being removed from the United States as a result of removal proceedings intiated against them as a direct result of the criminal conviction or sentence related to that conviction. For instance a long time lawful permenant resident of the United States with a decades old conviction can be unknowingly place removal proceedings for affirmatively applying for an immigration benefit such as citizenship as a result of the decades old conviction on his or her record. This can even be the case even if fines have been paid off and probation has been completed long ago. See our page on IMMIGRATION DETENTION for more detailed information. 

Remedies and Immigration Consequences

It has been recognized that the population of the United States includes millions of immigrants who arrived as children, attended schools, and found work in the United States. Moreover it is clear that they have gone on to lead very productive lives ingraining themselves in American society. Whether they become citizens or not, the ties that these immigrants maintain to their communities are evident not only in their work and schooling, but in how they've formed attachments and families of their own. In contrast, what ties they once had to their country of birth—from which they may lack even memories—often slip away. Accordingly, courts have recognized that when long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. See People v. Martinez (2013) Further it is recognized that because the prospect of deportation "is an integral part," and often even "the most important part," of a noncitizen defendant's calculus in responding to certain criminal both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. Padilla v. Kentucky (2010) see also Penal Code section 1016.2 as well as Penal Code section 1473.7.

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

Non Citizen Immigrant Defendants Have Rights

The United States Constitution bestows rights and protections to everyone in the United States regardless of immigration status. It is for this reason the United States Supreme Court has found, criminal convictions may have dire consequences under federal immigration law and that such consequences are material matters for non-citizen defendants faced with either taking a plea deal or taking a matter to trial. For instance, one who is deported cannot return to his home, loses his job, his friends, his home, and maybe even his children. That person's family is left in a situation where they must choose between being seperated or up rooting thier lives and moving to a foreign country. For a non citizen defendant with immigration concerns, he or she may view immigration consequences as their most important concern. Any adverse consequence having to do with their immigration status would have a profound affect on how they approach a criminal allegation against them. The attorneys at Uribe & Uribe APLC maintain an expertise in both immigration as well as criminal defense law so as to help non citizen defendants avoid harsh penal and immigration consequences resulting from criminal conviction. The severe consequence of deportation makes it critical to engage in a post conviction attorney that has experience representing immigrant defendants in both immigration and criminal court. 

Penal Code Section 1473.7

On January 1, 2017 California Penal Code section 1473.7 went into effect, providing non citizens who are no longer in criminal custody with a legal vehicle to challenge old, unlawful convictions. In essence Penal Code section 1473.7 provides a remedy for immigrant defendant's who did not meaningfully understand the immigration consequences of a conviction at the time of their plea, even if the prejudicial error was their own misunderstanding of the adverse immigration consequences of the plea. 

Penal Code section 1473.7 provides an opportunity for noncitizens to challenge convictions when a noncitizen defendant fails to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime. In 2018 the California Legislature amended Penal Code section 1473.7 since some courts mistakenly interpreted section 1473.7(a)(1) to apply solely to claims of ineffective assistance of counsel, ignoring the statutory language that a claim could be made based on the defendant's subjective inability to "meaningfully understand" or "knowingly accept" the immigration consequences of a plea. Instead it was found that the law must be interpreted in the interests of justice and in accordance with the findings and declarations of California Penal Code section 1016.2.

Penal Code section 1016.2 describes the severe and disproportionate impact that criminal consequences can have for noncitizen defendants and the damage that deportations can cause to United States citizen family members as well as to their surrounding communities. See below for more about Penal Code section 1016.2 and the protections that it provides to non citizen defendants.

The experienced post conviction relief attorneys at Uribe & Uribe APLC can provide expert advice for non citizens with concerns related to a criminal conviction on their record and how the conviction will impact  his or her immigration status. Before one begins the post conviction process it is important to determine whether one qualifies for a post conviction vehicle that will allow the non citizen or immigrant defendant to vacate his or her conviction. If you or a loved one is in need of post conviction relief to vacate a criminal conviction that is now causing adverse immigration consequences it is important to engage competent counsel capable of guiding you through the post conviction process. 

Section 1473.7, subdivision (a)(1), allows anyone not in criminal custody to file motion to vacate a conviction if "the conviction or sentence is legally invalid due to 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..." The statute mandates "all motions shall be entitled to a hearing," and empowers the courts to hold such a hearing outside the presence of the moving party only if "it finds good cause as to why the moving party only if "it finds good cause as to why the moving party cannot be present." See section 1473.7, subdivision (d). They did so by enacting section 1473.7, which "created an explicit right for a person no longer imprisoned or restrained." Under this provision, a court "shall" vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of "prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." See Penal Code section 1473.7(e)(1), (a)(1). A finding of prejudicial error under this provision may, but need not, be based on ineffective assistance of counsel. If the motion is meritorious, "the court shall allow the moving party to withdraw the plea."

If you feel that you may qualify for relief from adverse immigration consequences please contact Uribe & Uribe APLC to schedule a consultation.  

Who Qualifies for Penal Code Section 1473.7 Relief?

In order to qualify for relief under Penal Code section 1473.7, a defendant must no longer be in actual or constructive criminal custody. This rule is interpreted to mean that a defendant can no longer be in jail or on probation or parole to prosecute a Penal Code section 1473.7. A Penal Code section 1473.7 motion must also be filed with due diligence after the defendant becomes aware of the immigration consequence. The clock starts clicking on a claim when the defendant is placed on notice of the immigration consequences of a crime, which occurs at the later of the two dates, either: (1) when a person receives a notice to appear in removal proceedings or a denial of some immigration benefit alleging the conviction as the basis for removability or the benefit's denial: or (2) when a person receives a final order of removal. In order to be succesful in a Penal Code section 1473.7 motion, the moving party must establish that a "prejudicial error" occured. Penal Code section 1473.7(e)(1) indicates that the moving party must establish that the "conviction or sentence being challenged is currently causing, or has the potential to cause, removal or the denial of an application for an immigration benefit, lawful status, or naturalization". In simple terms there must be connections shown between the conviction and an articulable immigration consequence. For instance a non citizen defendant can show prejudice in a motion to vacate his or her conviction if they can convince a court that had they known of the adverse immigration consequences he or she would not have entered into the negotiated plea. In other words the Court must answer the question, "had they known of the adverse immigration consequences would they still have chosen to enter into the plea agreement?" For more information on penal code section 1473.7 and how this law can help a noncitizen defendant follow this link. The California Legislature sought to right the wrong of non citizen defendants suffering from the ill effects of past unlawful convictions. The Legislature did this by enacting Penal Code section 1473.7, which "created an explicit right for a person no longer imprisoned or restrained." Under this provision, a court "shall" vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of "prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." See Penal Code section 1473.7(e)(1), (a)(1). A finding of prejudicial error under this provision may, but need not, be based on ineffective assistance of counsel. If the motion is meritorious, "the court shall allow the moving party to withdraw the plea."

Relevant Case Law: 

People v. Lopez; B315320; set for publication on September 26, 2022 California Appellate 2nd District, Division 2

In People v. Lopez, Mr. Lopez pled guilty in 1998 to one count of 2nd degree robbery for using a replica .45 caliber hand gun to rob convenience stores.  He was sentenced to two years of state prison. On appeal the California Appellate Court reversed the Los Angeles Superior Court’s decision to deny Penal Code section 1473.7 relief.  In it's denial it was held that Mr. Lopez’s declaration set forth a reasonable basis for his erroneous belief that he would suffer no adverse immigration consequences because he was a lawful permanent resident which he thought would shield him from any adverse consequences.  Further the appellate court observed that Mr. Lopez’s lawyer never asked about his immigration status and never told him that a robbery conviction would subject him to mandatory deportation.  Even though Mr. Lopez’s attorney’s conduct did not equate to ineffective assistance of counsel pursuant to the Strickland analysis, it was recognized that his attorney’s conduct, amongst other things, contributed to Mr. Lopez’s misunderstanding causing him to suffer prejudice. The Appellate Court went on to recognize that prejudice means “demonstrating a reasonable probability that Mr. Lopez would have rejected the plea if he had correctly understood its actual and or potential immigration consequences. The Court of Appeal also considered the totality of circumstances noting that Mr. Lopez showed prejudice in his misunderstanding of the immigration consequences associated with this plea since: he was young and inexperienced, with no prior record; he got no advice from his lawyer; he assumed his lawful permanent resident status would protect him; he had no ties to Mexico and strong ties to the US.

People v. Manzanilla (2022) 80 Cal. App. 5th 891

In People v. Manzanilla (2022),  Mr. Manzanilla pled guilty in 2014 to a misdemeanor violation of Penal Code section 273.5 (corporal injury to a spouse) and was sentenced to 365 days in jail.  Unbeknownst to Mr. Manzanilla, under federal immigration law, this sentence made him an aggravated felon subjecting him to mandatory deportation. Seeking to vacate the conviction to avoid deportation Mr. Manzanilla filed a penal code section 1473.7 motion in the Los Angeles Superior Court. The lower court denied the petition and the Court of Appeal reversed. The appellate court held that defense counsel failed to advise the defendant that his plea would subject him to mandatory deportation and observed that defense counsel failed to seek an immigration-safe plea. Finally, it was recognized that Mr. Manzanilla attorney’s conduct caused Mr. Manzanilla’s misunderstanding that he would face mandatory deportation if he pled.

People v. Josefina Ruiz (2020) 49 Cal App. 5th 1061

The decision in Ruiz considers the question as to whether an immigrant advised pursuant to Penal Code §1016.5 that a plea of guilty “may” or “will” may make her deportable when considering a guilty plea for a violation of Health and Safety Code §11351.5. Ms. Ruiz moved to vacate her 1991 conviction for possession for sale of cocaine base (Health and Saf. Code, §11351.5.) a plea that the Ruiz court reasoned will render the defendant subject to mandatory removal. In Ruiz, the petitioner claimed that her trial counsel did not advise her that a mandatory consequence of her plea would make her “permanently ineligible to ever become a legal resident of the United States.” Ms. Ruiz initialed an advisement in the written plea agreement stating, “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The decision in Ruiz finds that Ms. Ruiz was not provided an adequate immigration advisement considering the nature of the conviction that he was pleading to wit the sale of cocaine base. The Ruiz court reasoned that “under section 1016.5, subdivision (a) defendants must be advised: “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 from admission to the United States, or denial of naturalization pursuant to the laws of the United States” but the California Supreme Court has held, however, that the words “may have” in a section 1016.5 immigration advisement are not an adequate immigration advisement for defendants charged with serious controlled substance offenses, instead defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. See People v. Patterson. “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for specific charged offense will render the defendant subject to mandatory removal.” See People v. Patterson, see also  People v. Espinoza (2018).

People v. Mejia (2019) 36 Cal.App. 5th 828

In People v. Mejia (2019) the California Appellate Court held that, to establish prejudicial error under Penal Code section 1473.7, a defendant need only prove by a preponderance of the evidence: “(1) [he] did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea; and (2) had [he] understood the consequences, it is reasonably probably [he] would have instead attempted to ‘defend against’ the charges.” The prejudicial errors include Mr. Mejia’s own misunderstanding of the long-term immigration consequences of his plea as well as the absence of specific immigration advice from his own attorney and the trial court regarding how this conviction would affect his long-term prospect of becoming a United States citizen.

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

The Camacho Court recognizes that as first enacted, Penal Code Section 1473.7 provides in relevant part that “a person no longer imprisoned… may prosecute a motion to vacate a conviction … that is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.” Section 1473.7, subdivision (e)(1), which remains unchanged, provides: “The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any ground for relief specified in subdivision (a).” In the two years that followed the enactment of Penal Code Section 1473.7, courts uniformly assumed, that moving parties who claim prejudicial error caused by having received erroneous or inadequate information from counsel, must demonstrate that counsel’s performance fell below an objective standard of reasonableness under prevailing norms, as well as a reasonable probability of a different outcome if counsel has rendered effective assistance. Those courts either expressly or impliedly followed the guidelines enunciated in Strickland v. Washington (1984), People v. Espinoza (2018), People v. Tapia (2018), People v. Olvera (2018), People v. Ogunmowo (2018), and People v. Perez (2018). It is important to note that the rule established in Penal Code Section 1473.7 like any other statute is based upon statutory interpretation by judges who apply the law to the facts of a petitioner's particular case. Where a party moves to vacate their conviction under section 1473.7, the moving party is required only to show that one or more of the establoished errors were prejudicial and damaged his 'ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea." See People v. Camacho. The decision in Camacho provides insight into how the law can be applied to help immigrant defendants seeking post conviction relief. Thus, in order to make a prima facie showing of entitlement to relief, a party must allege (1) some error, and (2) that the alleged error prejudiced their ability to meaningfully understand, defend against, of knowingly accept the plea. An error may prejudice a moving party "when there is a reasonable probability that the person would not have pleaded guilty- and would have risked going to trial (even if only to figuratively throw a 'Hail Mary'}- had the person known that the guilty plea would result in mandatory and dire immigration consequences." People v. Mejia (2019).   

People v. Vivar (2020) 11 Cal. App. 5th 510

In People v. Vivar (2019) the court there noted that a ‘prejudicial error’ for purposes of Penal Code section 1473.7 occurs when there is a reasonable probability that the person would not have pled guilty had he or she known that the guilty plea would result in mandatory and dire immigration consequences. The question the Court in Mr. Vivar's case considered whether he would have received a more favorable outcome in the case overall or whether he would have been convicted of the same crimes even if he had proceeded to trial. Instead, the focus of the appellate court was whether, if aware of its immigration consequences, Mr. Vivar would have rejected the plea. The appellate court ruled over turning the lower court that Mr. Vivar need only show contemporaneous evidence demonstrating a reasonable probability that but for the alleged error he would not have entered a guilty plea. Further it was held that in order to prevail on motion, the he must show prejudice if he can convince the court “he would never have entered the plea if he had known that it would render him deportable.” In its reasoning, the Court of Appeal determined that trial counsel failed to advise Mr. Vivar of "the certain immigration consequences of his plea." Because of this failure counsel's representation was deemed to be "constitutionally deficient." In closing the appellate court determined Mr. Vivar was prejudiced within the meaning of section 1473.7, subdivision (a)(1).

Penal Code Section 1016.2

Penal Code section 1016.2 maintains legal protections for non citizen defendants in criminal court to avoid adverse consequences in federal immigration court. For instance, the California Legislature has codified the findings below:

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

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

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

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

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

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

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

Penal Code Section 1016.5

The language of California Penal Code section 1016.5 holds that before a court may accept a guily or no contest plea, the Court must ensure that the non citizen client has been advised of immigration consequences associated with his or her plea pursuant to Penal Code section 1016.5, subdivision (a). If the Court does not advise the non citizen defendant and there is no record the defendant was so advised, then the non citizen defendant is entitled to prosecute a motion to withdraw his or her plea.  Further if there is no court record that the non citizen defendant was advised there is a presumption he or she was not, and the prosecution bears the burden of rebutting the presumption. If the presumption of non advisement cannot be rebutted then conviction will be vacated.

If the advisements were not given, section 1016.5(b) provides the defendant with the remedy of moving to withdraw a guilty or no contest plea when he or she establishes that the conviction based upon the plea may have the consequences of his or her deportation, exclusion for admission in the United States, or the denial of naturalization. Simply, Penal Code section 1016.5(a) requires the trial court, prior to accepting a plea of guilty or nolo contendere, to give the defendant the following advisement on the record.

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

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

Importantly this statute provides a remedy if the Court does not advise of adverse immigration consequences. 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. 

Penal Code section 1016.5 is a remedy that was first enacted in 1978 to address the issue of the Government's failure to notify a non citizen defendant of the potential of adverse consequneces resulting from the accepted negotiated plea. Essentially Penal Code section 1016.5 puts the onus on the Court to advise immigrant defendants of adverse immgiration consequences. If the Court does not advise of potential adverse immigration consequences then the non citizen defendant upon his or her motion can petition the Court to have the conviction vacated.

In People v. Superior Court (Zamudio), it was considered what constituted prejudice when a trial court failed to advise a defendant of the plea's potential immigration consequences as required by Penal Code section 1016.5. Prejudice in such circumstances depended on "whether it is "reasonably probable" the defendant would not have pleaded guilty if properly advised.'" The focus on "what the defendant would have done, not whether the defendant's decision would have led to a more favorable result" derived from the fact that a defendant "may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges. A decision to reject a plea bargain, we explained, "might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences."  When a court weighs whether a defendant would have taken the latter path, it need not decide whether the prosecution would actually "have offered a different bargain"—rather, the court should consider "evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated."

Guilty Pleas CaN CAuse ADVERSE Immigration CoNSEQUENCES 

The reality is that a non citizen defendant that enters a no contest or guilty plea may be unaware of potential immigration consequences associated with the plea. Unfortuanately this may be the case for many years even decades after the conviction and the sentence has been served. Many immigrants do not become aware of immigration consequences until immigration authorities initiate removal proceedings against them. Often this can happen years after the immigrant defendant successfully completed probation or parole. As a result, many families have been torn apart by deportations based on convictions entered unknowingly by non citizen family members. Court's have found and our California Legislature has recognized that, “once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.”

The bottom line is that adverse immigration consequences stemming from unlawful convictions have caused an unmistakable harm to the immigrant community and in turn to greater American society. Further the United States Supreme Court has found that “criminal convictions may have ‘dire consequences’ under federal immigration law and that such consequences are “material matters” for noncitizen defendants faced with pleading decisions. A  non citizen defendant who is removed from the United States is in a situation there he or she cannot return and loses their job, their friends, home, and maybe even their children, who must choose between their parent and their native country. Indeed, a defendant ‘may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges’, such as when the defendant has family residing legally in the United States. Thus, even before the Legislature expressly recognized in section 1016.5, subdivision (d) the unfairness inherent in holding noncitizens to pleas they entered without knowing the consequent immigration risks, we held that justice may require permitting one who pleads guilty “without knowledge of or reason to suspect immigration consequences to withdraw the plea.  

Vacate a Criminal Conviction To Avoid Deportation

The attorneys at Uribe & Uribe APLC understand the high stakes and severe consequences that are involved when a client is accused of a crime. Defending non-citizens accused of crime requires an understanding of how a criminal conviction will affect an immigrant's fate in immigration court. Drug charges, domestic violence, DUIs, solicitation, assault, aggravated felonies and firearm charges are just a few of the many crimes that will cause adverse immigration consequences for an immigrant defendant in criminal court. The attorneys at Uribe & Uribe APLC understand the high stakes for a client who has immigration concerns. Defending non-citizen defendants with immigration concerns takes an understanding of immigration law since an he or she may face another set of consequences once they are brought before an immigration judge. For these reasons it is important for a non citizen defendant facing adverse immigration consequences to engage competent counsel who is knowledgable in both the consequences of criminal and immigration law to represent his or her best interests. 

Deportation Ruins Lives 

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

Padilla v. Kentucky (2010)

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

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

Defending The Rights of Immigrants 

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

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

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

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

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

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

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

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

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