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Will a criminal record seal in Nevada stop me from getting deported?

Posted by Neil Shouse | Jul 05, 2018 | 0 Comments

No. Getting a criminal record seal in Nevada is always a positive thing that expands one's employment opportunities, but it cannot keep a non-citizen from getting deported. ICE has access to immigrants' criminal records even if they have been sealed. Therefore, aliens wishing to avoid deportation should explore the following post-conviction relief options that may stop their removal proceedings:

  1. Motion to withdraw a plea
  2. Motion for a new trial
  3. Appeals
  4. Writ of habeas corpus
  5. 2255 motions (in federal cases)

1. Motion to withdraw a plea (NRS 176.165)

Immigrants who agreed to a plea bargain that jeopardizes their resident status can try to get the plea withdrawn. If successful, then the immigrant's attorney will be in the position to try to negotiate a better plea bargain that does not make the immigrant vulnerable to deportation.

Potential grounds for a motion to withdraw a plea are:

  • The immigrant suffered from ineffective assistance of counsel,
  • The immigrant suffered from ineffective assistance of translator (for non-English speaking immigrants),
  • The immigrant did not enter into the plea agreement knowingly, voluntarily, and intelligently, and/or
  • No one informed the immigrant that the plea agreement may prevent him/her from getting probation

2. Motion for a new trial (NRS 176.515)

Anyone who has been found guilty at trial can ask the court to set aside the verdict and grant a new trial. If the court agrees, then an immigrant defendant would have a clean slate to retry the case or else try to negotiate a plea bargain with no deportation consequences.

Potential grounds for a motion for a new trial are:

  • The immigrant suffered from ineffective assistance of counsel,
  • There was insufficient evidence to justify the verdict,
  • There was conflicting or wrongly admitted evidence that did not justify the verdict,
  • There is new evidence that sheds doubt on the verdict,
  • The judge, jury, or prosecutors made an error that sheds doubt on the verdict,
  • A witness committed perjury, and/or
  • The trial transcripts have been lost

3. Appeals (NRS 177)

It is always possible that a guilty verdict can be overturned on appeal. For example, cases in the Second Judicial District Court in Reno may be heard on appeal at the Nevada Court of Appeals, the Nevada Supreme Court, and possibly the U.S. Supreme Court.

If a higher court overturns the guilty verdict of a lower court, then an immigrant defendant may be able to avoid deportation.

4. Writ of Habeas Corpus (NRS 34.360)

When all other legal channels have been exhausted, an immigrant's attorney may file a writ of habeas corpus to argue against the lawfulness of incarcerating the defendant. If the judge grants the writ, it could help the immigrant's case to avoid deportation.

Some of the grounds for habeas corpus relief are:

  1. The court acted beyond the bounds of its jurisdiction,
  2. The imprisonment of the defendant is not legal anymore,
  3. The case suffers from procedural or substantive problems,
  4. The prison incarcerated the wrong person,
  5. The defendant was imprisoned without a judgment or court order,
  6. There was no probable cause to indict the defendant,
  7. The law that led to the defendant's indictment was not constitutional, and/or
  8. The defendant had his/her constitutional rights violated.

5. Federal motion to vacate, set aside, or correct sentence

When an immigrant has been convicted of a deportable crime in federal court, his/her attorney can file a "2255 motion." This is also known as a "motion to vacate, set aside, or correct sentence." If the court grants the 2255 motion, it could help the immigrant's case to avoid deportation.

Some of the grounds for a 2255 motion are:

  • The immigrant suffered from ineffective assistance of counsel,
  • The immigrant was deprived of due process,
  • The immigrant's sentence violated the constitution,
  • The prosecutors were guilty of misconduct, and/or
  • The court did not have proper jurisdiction.

Learn more about the criminal defense of immigrants in Nevada.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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