Ways to Modify or Vacate Past Criminal Convictions in California
Our California criminal & immigration lawyers help clients petition the court to clear and remove prior convictions triggering immigration consequences
If you are a non-citizen, it may be possible to modify or vacate your past criminal convictions in order to save your resident status so you may remain in the United States. In this article, our California immigration criminal defense lawyers discuss different methods of "post-conviction relief."
It is very important that aliens who have been arrested for a crime hire a good immigrant criminal defense attorney right away. Some crimes can get you deported from the U.S., so you need an attorney to try to dismiss or negotiate down your charges to a lesser crime that will not put you in immigration court.
However, even if you have already been convicted of a crime, it still may be possible to avoid immigration court depending on the facts of your case. But don't wait any longer! The quicker you seek post-conviction relief, the higher your chances of success. To schedule a free consultation to discuss your case, please call our lawyers at (888) 327-4652.
- For information about which crimes may put you at risk of being deported from the United States, visit our page on California Crimes that Lead to Deportation.
- For information about which crimes can keep you from being admitted into the United States, visit our page on California Crimes that are Inadmissible.
- For more detailed information about crimes involving moral turpitude, visit our page on Crimes involving Moral Turpitude in California.
Ineffective Assistance of Counsel as a Basis for Post-Conviction Relief
Unfortunately, many of the immigrants who take bad pleas do so on the advice of incompetent lawyers. Immigrants often plea to crimes without fully understanding how the plea can threaten their resident status and maybe get them deported from the U.S, their visa or green card status revoked, and denied naturalization. Had the immigrants known the whole story, they never would have accepted the deal.
If you had a lawyer at the time that you pled to the crime, we can try to argue that your lawyer was guilty of "ineffective assistance of counsel:" If we can prove that your lawyer failed to advise you about the immigration consequences of your plea, the court may allow you to withdraw your guilty plea.1
Re-sentencing to Avoid a Conviction for an Aggravated Felony
As we explain in our page on California Crimes that Lead to Deportation, an immigration judge may try to remove you from the U.S. if you've been convicted of an "aggravated felony." In many cases, crimes become aggravated felonies if the judge imposes a jail sentence of a year or more. Therefore, if we can ask the judge to change your sentence to less than a year, you will no longer have a conviction for an aggravated felony.
Modifying an aggravated felony conviction is a lot easier if you are still on probation for the crime. If probation has passed or if you're in state prison, the process is trickier but still may be possible.
Changing your Conviction into a Misdemeanor
In California, there are a few crimes which can be classified as either a misdemeanor or a felony depending on the judge's sentence. Felonies typically carry prison sentences of a year or more, while misdemeanor jail sentences are a year or less. A few examples of these "wobbler" crimes in California include assault, battery, domestic violence, and vandalism.
If you got convicted of a wobbler crime in California as a felony, the judge may later reduce it to a misdemeanor conviction if you can demonstrate to the court that you've been rehabilitated.2 The judge typically grants this reduction after your probation has been completed. If your conviction is changed from a felony to a misdemeanor, it will be less likely that an immigration judge can order removal or deportation from the United States.
Vacating Convictions for Simple Drug Possession
If you're a non-citizen and your conviction was for simple drug possession, then you may be able to get that charge wiped off your record by completing a Proposition 36 drug program or using California Penal Code § 1203.4. And as long as this drug conviction was your first offense, it shouldn't hurt your resident status in immigration court.3
Other Measures to Vacate a Conviction
Other ways we may try to vacate your conviction include:
- Motion to Withdraw Pleas under California Penal Code 1018: You may be able to withdraw your guilty plea under the California Penal Code, but it has to be done prior to your judgment or within six (6) months after the judge granted you probation.
- Habeas Corpus: If you're still incarcerated or out on probation, we can file a "habeas corpus" writ, where we challenge the legality of the state keeping you "in custody."
Let us help you . . . .
Immigrants and non-citizens who already have convictions on their records should not give up hope. We may be able to modify your conviction or vacate it completely, thereby safeguarding your resident status. But we have to act quickly. For help, please call our Los Angeles immigration criminal defense attorneys at (888) 327-4652.
1People v. Soriano,194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987)
2California Penal Code § 17(b)(3)
3Lujan-Armendariz v. INS, 222 F.3d 728, 738 (9th Cir., 2000)
