Is there post-conviction relief for non-citizens in Nevada?

Posted on February 1, 2022

Hundreds of thousands of non-citizens in Nevada face immigration consequences for prior criminal convictions. These consequences affect legal and illegal immigrants alike and can include deportation, denial of re-entry, and denial of the chance for naturalization to the United States. But non-citizens have hope in post-conviction relief.

1. What is “post-conviction relief” in Nevada?

Post-conviction relief refers to an area of criminal law where people convicted of a criminal offense can try to go back and modify, and sometimes vacate, their prior convictions. Sometimes this involves seeking retroactively to reduce or change sentencing.

For example, an aggravated felony triggers immigration consequences when the sentence is 365 days or longer. Modifying a sentence to, say, 364 days can sometimes stop a person’s deportation.

2. What is a motion to vacate a prior conviction?

A motion to vacate a prior conviction is the most common form of post-conviction relief in Nevada. A defendant uses the motion to help withdraw a guilty plea.

The most common basis for the motion is failure to advise the defendant of immigration consequences. Here, a defense attorney will try to convince the court that at the time the client accepted a plea bargain and pled guilty or no contest, he was not apprised of the immigration ramifications. Had he been, he would not have entered the deal. Learn more in our article, “Can I withdraw a guilty plea in Nevada?”

Even if a motion to vacate succeeds, it really is only half the battle. All that it typically does is allow the defendant to withdraw his plea. The original charges then get reinstated, and the case is reopened.

Once this occurs, a Nevada criminal defense attorney must fight the case anew, or convince the prosecutor to offer a different plea bargain that won’t trigger immigration consequences. While the entire process may be arduous, it’s often the last line of defense for an immigrant seeking to remain in the United States. Learn more about criminal defense of immigrants in Nevada.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.