Post-Conviction Relief for Non-Citizens in Nevada

Posted on July 30, 2009

Hundreds of thousands of non-citizens 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.

An area of criminal law exists that involves efforts to go back and modify, and sometimes vacate, these convictions. Lawyers generally call this post-conviction relief. Sometimes this involves seeking retroactively to reduce or change sentencing. An aggravated felony, for example, triggers immigration consequences when the sentence is for 365 days or longer. Modifying a sentence to, say, 364 days can sometimes stop a person’s deportation.

But the most common form of post-conviction relief is a motion to vacate a prior conviction. And the most common basis for the motion is failure to advise the defendant of immigration consequences. The 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 reopened. Now the 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, Court TV, 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.