But it may be possible to petition a court to grant you post-conviction relief by, for example, vacating or modifying your conviction. This, in turn, may preserve your right to stay in the country.2
Forms of post-conviction relief for immigrants
If you are an immigrant and have a conviction for a deportable or inadmissible crime on your record, all is not lost. With the help of a skilled criminal immigration attorney, you may be able to receive some form of post-conviction relief that will make your conviction disappear for immigration purposes.
This is especially likely if you were convicted or pled guilty because of ineffective assistance of counsel--or because you were not properly informed of the potential immigration consequences of a conviction.
The most common forms of post-conviction relief are:
- A motion to overturn the conviction based on ineffective assistance of counsel (for example, your lawyer in the criminal case did a deficient job);
- A motion for re-sentencing to avoid a conviction for an aggravated felony or other inadmissible or deportable crime;
- Reducing your conviction from a felony to a misdemeanor;
- A motion to withdraw a guilty or no-contest plea because the court did not advise you of the immigration consequences of the plea 3;
- A motion to withdraw a plea for other reasons 4; and
- A habeas corpus petition.
Example: Nikki is an immigrant from Jamaica. She has lived in the US for 15 years and has a green card.
One night, Nikki is riding in a car with several friends. They get pulled over, and the cop finds the drug Ecstasy in the glove compartment. Nikki and all of her friends are charged with possession of a controlled substance.
One of Nikki’s friends (who is a US citizen) hires a lawyer, who advises the friend to enter a “no contest” plea. Nikki assumes that the same advice would apply to her as well and decide to plead “no contest” too.
But after she has entered her plea, Nikki finds out that pleading guilty to a California drug crime has made
Nikki is distraught and immediately contacts an experienced criminal and immigration attorney. Her attorney works with her
to file a motion to withdraw her plea--a form of post-conviction relief which, if successful, will eliminate the immigration consequences of the drug conviction.6
In order to help you better understand the forms of post-conviction relief that can take a deportable crime of your record and/or help you avoid the immigration consequences of a criminal conviction, our California criminal defense and immigration attorneys will address the following:
- 1. Why Should Immigrants Try to Get Post-Conviction Relief?
- 2. Can I Get Post-Conviction Relief Based on Ineffective Assistance of Counsel?
- 3. How Can a Motion for Re-Sentencing Help Me Avoid Deportation?
- 4. Can Reducing a Felony to a Misdemeanor Save My Immigration Status?
- 5. Does Withdrawing a Guilty Plea Eliminate the Immigration Consequences?
- 6. Can a Habeas Corpus Petition Help Me Avoid Deportation?
- 7. Which Forms of Post-Conviction Relief Will Not Eliminate Immigration Consequences?
If, after reading this article, You have additional questions, we invite you to contact us.
The short answer is that a criminal conviction, even for certain minor offenses, can have disastrous immigration consequences for people who are not U.S. citizens.
Under the federal Immigration and Nationality Act (usually referred to as the “INA”), a conviction can result in:
- Deportation, and/or
- Inadmissibility 7
If a non-citizen is deportable, that means s/he may be removed from the country unless s/he obtains effective post-conviction relief.
If an immigrant is inadmissible, that means s/he may not be able to
- Re-enter the country after leaving,
- Become a US citizen,
- Apply for permanent residence (a “green card“), or
- For illegal immigrants, apply for an “adjustment of status” — that is, a change from illegal to legal immigration status.8
If you have a criminal conviction on your record that is on the list of deportable crimes or inadmissible crimes, and you do not remove the conviction through post-conviction relief, then you will be deportable or inadmissible. It does not matter
- how long you have lived in the country,9
- how strong your ties (job, family, owning a business, etc.) are here,
- whether you have a dependent child who is a US citizen,10 or
- whether you are a legal or an illegal immigrant.11
The major categories of “deportable crimes” are:
- So-called “crimes of moral turpitude,”
- So-called “aggravated felonies” (which includes crimes like murder, rape, and theft crimes that carry a sentence of more than one (1) year in prison12),
- Controlled substances (drug) offenses,
- Firearms offenses, and
- Domestic violence crimes.13
And inadmissibility is typically triggered by:
- A conviction for a crime of moral turpitude,
- A conviction for a drug crime, or
- Convictions for two (2) or more crimes where the overall prison sentences add up to five (5) years or more.14
Avoiding deportation or inadmissibility is a major priority for immigrants accused of crimes. The perfect outcome is to avoid a conviction for a deportable crime or an inadmissible crime in the first place.
But sometimes this is not possible. In those cases, post-conviction relief may be your best option.
Unfortunately, many immigrants who end up with convictions for deportable or inadmissible crimes (and end up seeking post-conviction relief as a result) took the advice of incompetent lawyers.
Criminal defense lawyers who do not understand immigration law may advise clients to plead guilty or “no contest” to crimes without fully understanding how the plea can threaten their immigration status. Had the immigrants known the whole story, they never would have accepted the deal.
But the Sixth Amendment to the United States Constitution, which is part of the Bill of Rights, provides all defendants criminal with the right to a fair trial.15 If a non-citizen defendant’s lawyer does a bad enough job, the defendant can argue that this right was violated by “ineffective assistance of counsel.”16
In the next sections of this article, we discuss procedural tools that a non-citizen facing deportation or inadmissibility and his/her attorney can use to overturn a prior conviction. With all of these tools, ineffective assistance of counsel is a common reason for judges to grant post-conviction relief.
A specific kind of motion for post-conviction relief based on ineffective assistance of counsel is the so-called “Padilla motion.” (These are named after a US Supreme Court case that established the legal basis for them.17)
A Padilla motion is a form of post-conviction relief for immigrants that can be granted if all of the following are true:
- You are a non-citizen who pled guilty to a deportable or inadmissible crime;
- You pled guilty because your lawyer did not do adequate research into the immigration consequences of a guilty plea and / or did not do a good enough job of informing you of those consequences;18 and
- Your guilty plea became final after March of 2010.19
Example: Jose is from Honduras but has been a lawful permanent resident of the US for over 40 years. He even served in the US Armed Forces and fought in Vietnam.
Jose is caught with a large amount of marijuana in his tractor-trailer. His lawyer advises him to plead guilty to transportation of a controlled substance. His lawyer tells him he does not need to worry about any immigration consequences of a conviction because he has been in the country so long. So Jose pleads guilty.
It turns out that his lawyer is wrong — transportation of a controlled substance is a deportable crime. But Jose may be eligible to have his conviction vacated through a post-conviction Padilla motion--and avoid deportation--because of the bad advice he got from his lawyer.20
According to San Diego criminal defense attorney Neil Shouse21:
“Padilla motions are potentially a very powerful tool for challenging a California criminal conviction with immigration consequences. But the law on Padilla motions in California and elsewhere is relatively new and is always changing. It’s best to consult with an experienced criminal and immigration attorney to determine if a Padilla motion is a potential form of post-conviction relief for you.”
A motion for re-sentencing is one way to receive post-conviction relief that can eliminate the immigration consequences of a conviction.
This is because the immigration consequences for certain kinds of criminal convictions depend on the sentence that you receive. To list a few examples:
- A California theft crime is an “aggravated felony” — a deportable crime — only if the sentence imposed is one (1) year or more;22
- You can be made inadmissible if you have more than one criminal conviction and the sentences you receive add up to five (5) years or more;23 and
- You can be inadmissible if you are convicted of a crime of moral turpitude--UNLESS the maximum sentence for that crime is one (1) year or less, AND your actual sentence is six (6) months or less.24
So depending on the nature of your conviction you may be able to eliminate the immigration consequences of the convictionby having your sentence reduced. An attorney who is experienced with this form of post-conviction relief can submit a motion for re-sentencing to the judge who handled your sentence initially.
Getting a conviction changed from a felony to a misdemeanor may also eliminate the immigration consequences of the conviction.
For example, a conviction for an “aggravated felony” — a deportable crime25 — unless it is actually a felony conviction.
Reducing a felony conviction to a misdemeanor may be a feasible form of post-conviction relief if both of the following are true:
- The conviction is for a crime that is a “wobbler” in California law, and
- You were granted probation instead of a prison sentence.26
“Wobblers” are crimes that can be classified as either a misdemeanor or a felony.27
Some common “wobbler” crimes in California include:
- Burglary of a structure that Is not inhabited,28
- Assault with a deadly weapon,29 and
- Sexual battery.30
If you are convicted of a crime as a felony wobbler and sentenced to probation, the judge may reduce your conviction to a misdemeanor after your probation has been completed — if you can demonstrate to the court that you’ve been rehabilitated.31 You are less likely to be deported if your conviction is changed from a felony to a misdemeanor through this form of post-conviction relief.
Example: Hans is a German citizen living in the US on a green card. When he is 19, he is Involved in a burglary of a store. The prosecutor charges the crime as a felony, and Hans is Convicted of felony burglary--but receives felony probation as a sentence.
Hans is concerned about being deported or possibly inadmissible because of his conviction. He and his criminal immigration attorney therefore petition the judge to reduce his conviction to a misdemeanor, making it less likely that there will be immigration consequences.
Seeing that Hans has stuck to the terms of his probation and otherwise has a clean record, the judge agrees to this form of post-conviction relief.
One of the more common, and tragic, scenarios in criminal immigration law is when a non-citizen pleads guilty to a minor offense — often a drug crime — because s / he does not understand that even a minor conviction can in some cases lead to deportation or inadmissibility.
When this occurs, California law may offer a way out — through a form of post-conviction relief called a motion to withdraw a guilty or no-contest plea.32
A successful motion to withdraw a plea usually needs to be made either:
- Before the judge has handed down your sentence, OR
- Within six (6) months after the judgment is final, if you are granted a sentence of probation.33
To withdraw a plea in California, you need to be able to show “good cause” to do so.34
If you pled guilty because you did not know about the immigration consequences of the plea, you may be able to successfully argue that you have good cause to withdraw your plea and obtain this form of post-conviction relief.35
Example: Julio, a native of El Salvador and a lawful permanent resident of the US, is charged with possession of a controlled substance. He decides to plead guilty to the charge and is sentenced to three years of probation. Neither he, his lawyer, nor the judge accepting his plea realizes that this could make him deportable.
Not long after, US immigration authorities contact Julio and inform him that he is subject to deportation for this conviction. Julio and his lawyer move to withdraw his plea, and the judge grants the motion — Julio’s ignorance of the immigration consequences of his plea is considered good cause for him to obtain this kind of post-conviction relief.36
Ineffective assistance of counsel is another potential good cause for withdrawing your plea. As we discussed in Section 1 above, the form of post-conviction relief referred to as a “Padilla motion” is based on the notion that it can be ineffective assistance of counsel for a lawyer to give his / her client insufficient or inaccurate advice about the immigration consequences of a guilty plea.37
A motion to withdraw a plea, therefore, can be a form of Padilla motion — if your guilty plea became final on or after March 2010.38
California Penal Code 1016.5 PC requires courts to give the following warning to criminal defendants:
“If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”39
- the court fails to issue this warning,
- you plead guilty, AND
- you can show that the conviction may lead to deportation or inadmissibility,
then you have the right to withdraw your plea and have the conviction vacated.40 This will function as a form of post-conviction relief that eliminates the immigration consequences of the conviction.
There is no time limit or deadline for seeking to vacate a conviction because you were not warned of potential immigration consequences as required by Penal Code 1016.5 PC.41
However, for post-conviction relief under this law, you are required to show that the failure to advise you of immigration consequences had an effect on your decision to plead guilty.42
For example, if the court did not warn you about the potential immigration consequences — but you are a paralegal trained in immigration law and clearly already knew about them — then you may not be able to receive post-conviction relief under this law.
In different circumstances, a petition for writ of habeas corpus may be an appropriate form of post-conviction relief for an immigrant with a criminal conviction.
“Habeas corpus” is a Latin phrase that means, “that you have the body.”43 In California, anyone who is
- currently serving a prison sentence, or
- otherwise restrained in some way by the criminal justice system (on probation or parole, for example),
can bring a habeas corpus petition.44
You can bring seek post-conviction relief through a habeas corpus petition based on the argument that you received ineffective assistance of counsel as an immigrant charged with a California crime.45
This would be another variation on the “Padilla motion” we described in Section 1 — and could get you the post-conviction relief you need if you pled guilty after March 2010, based on the faulty advice of a lawyer who did not understand the immigration consequences of the plea.46
There are no strict deadlines for filing a habeas corpus petition--as long as it is filed while you are in custody (which can include probation or parole).47
It is important to note that not every form of post-conviction relief immigration will eliminate the consequences of a conviction.
Simply put, a criminal conviction for immigration purposes is erased only if it is vacated because there was some sort of legal defect in the conviction. But if it is vacated for any other reason, it probably will not help with your immigration situation. 48
For example, in many states — including California – you may be eligible for an expungement of your criminal record on so-called”rehabilitative grounds.”49 This kind of expungement can help you secure employment or obtain a professional license in spite of the conviction.50
But rehabilitative post-conviction relief will NOT eliminate the immigration consequences of the conviction. The reason for that is that this kind of relief is granted for so-called “humanitarian” reasons — rather than because there was a legal problem that made the conviction invalid from the start.51
7.1. Will post-conviction relief under Proposition 64 eliminate the immigration consequences of a marijuana conviction?
At the time of writing, it is uncertain whether vacating a marijuana conviction under Proposition 64 (legalizing recreational marijuana in California) will help non-citizens avoid deportation for such offenses.
Prop 64 was passed by California voters in November 2016. This law makes it legal for people 21 and older to possess and cultivate small amounts of marijuana for personal use, and allows people to sell marijuana if they have a state license to do so.
Health and Safety Code 11361.8 HS, passed as part of Prop 64, provides for post-conviction relief for people who were convicted of California marijuana offenses before legalization. These defendants can apply to have their convictions vacated and sealed if they would not have been guilty of a crime under the new law.
Non-citizens convicted of the following offenses may be eligible for post-conviction relief under Prop 64:
- Cultivation of six or fewer marijuana plants for personal use,
- Giving away up to around an ounce of marijuana, and
- Possession of up to four grams of concentrated cannabis.
Unfortunately, there is a good chance that US immigration and federal courts will decide that this relief is “rehabilitative”--even though the drafters of Prop 64 put in language saying that prior marijuana convictions for which relief is available are “legally invalid.”
If Prop 64 relief is deemed to be rehabilitative, it will not prevent defendants from being deported.
Still, vacating and sealing a marijuana conviction may make it difficult for federal immigration authorities to find out about the conviction or produce conclusive evidence that it ever occurred. This is reason enough for immigrants with marijuana convictions affected by the new law to at least attempt to obtain post-conviction relief through Prop 64.
Call Us for Help …
If you or a loved one is in need of help with post-conviction relief in order to vacate a conviction for immigraiton purposes, and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in our office or by phone.
Our California immigration attorneys have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn about post-conviction relief for non-citizens in Nevada, please visit our page on post-conviction relief for non-citizens in Nevada.
- Immigration & Nationality Act (“INA”) 237, 8 USC 1227 – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief].
- See, e.g., Penal Code 1016.5 PC – Advisement concerning status as alien; reconsideration of plea; effect of noncompliance [can be a basis for post-conviction relief].
- Penal Code 1018 PC – Defendant to plead in person; certain refusal of pleas; change of plea; corporate defendants; construction of section [May be basis of post-conviction relief].
- INA 237 (a) (2) (B) – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief].
- See Penal Code 1018 PC [form of post-conviction relief], endnote 4 above.
- See INA 237, endnote 1 above; INA 212, 8 USC 1182 – Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief].
- INA 245, 8 USC 1255 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence [can be affected by immigration consequences of a California criminal conviction].
- See Saw-Reyes v. INS, (5th Cir. 1978) 585 F.2d 762.
- Encis-Cardozo v. INS (2d Cir. 1974), 504 F.2d 1252.
- See INA 101 (a) (3), 8 USC 1101 – Definitions.
- See INA 101 (a) (43) – Definitions.
- INA 237 — Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief]., endnote 1 above.
- INA 212 — Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief], endnote 7 above.
- US Const., am. VI [can be a basis for post-conviction relief].
- See Strickland v. Washington, (1984) 466 US 668, 686.
- Padilla v. Kentucky, (2010) 559 US 356, 360 [basis for Padilla motion form of post-conviction relief].
- See same.
- Chaidez v. United States, (2013) 133 S.Ct. 1103, 1105.
- Based on the facts of Padilla v. Kentucky, endnote 17, above.
- Our San Diego criminal defense and immigration attorneys understand the unique issues facing California immigrants charged with crimes. We are experienced with representing aliens both in their initial criminal proceedings and in efforts to obtain post-conviction relief. We represents both US citizen and non-citizen clients at courthouses in criminal proceedings throughout Southern California.
- INA 237 (a) (2) (iii) – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief].See also INA 101 (a) (43) – Definitions.
- INA 212 (a) (2) (B) – Inadmissible crimes [[convictions for which a non-citizen may want to seek post-conviction relief].
- INA 212 (a) (2) (A) (ii) (II) – Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief].
- INA 237 – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief], endnote 1 above.
- Penal Code 17 (b) (3) PC – Classification of Offenses [basis for post-conviction relief].
- Penal Code 17 (b) PC – Classification of Offenses [basis for post-conviction relief].
- Penal Code 461 PC – Burglary [can be reduced from felony to misdemeanor as form of post-conviction relief]; punishment.See also Penal Code 460 PC – Burglary; degrees.
- Penal Code 245 (a) (1) PC – Assault with a deadly weapon [can be reduced from felony to misdemeanor as form of post-conviction relief].
- Penal Code 243.4 PC – Sexual battery [can be reduced from felony to misdemeanor as form of post-conviction relief].
- Penal Code 17 (b) (3) PC – Classification of Offenses [basis for post-conviction relief], endnote 26, above.
- Penal Code 1018 PC – Motion to withdraw a plea [form of post-conviction relief].
- See same.
- See same.
- See People v. Sup. Ct. (Giron), (1974) 11 Cal.3d 793, 798.
- Based on the facts of the same.
- See Padilla v. Kentucky, endnote 17, above.
- See Chaidez v. United States, endnote 19, above.
- Penal Code 1016.5 PC – Advisement concerning status as an alien [May be basis for post-conviction relief].
- See same.
- People v. Sup. Ct. (Zamudio), (2000) 23 Cal.4th 999, 204.
- See same, at 199-200.
- Black’s Law Dictionary (9th ed. 2009), habeas corpus [form of post-conviction relief].
- Penal Code 1473 PC – Persons authorized to prosecute writ [of habeas corpus, form of post-conviction relief for immigrants]; false evidence.
- People v. Jackson (1973) 10 Cal.3d 265, 268.
- See Padilla v. Kentucky, endnote 17, above; Chaidez v. United States, endnote 19, above.
- Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence, endnote 44, above.
- Matter of Pickering, (BIA 2003) 23 I & N Dec. 621, 624.
- Penal Code 1203.4 – Expungement of criminal record [form of post-conviction relief that may not help avoid immigration consequences].
- See Labor Code 432.7 LC.
- See Matter of Roldan, (BIA 1999) 22 I & N Dec. 512, 524.