By Attorneys Ben Loveman & Nancy E. Miller
A significant recent change to California laws is providing new hope to persons formerly barred from immigration benefits. A new penal code section allows noncitizen-defendants to contest and potentially vacate a conviction at any time based on prejudicial error affecting the defendant’s right to understand and consider the immigration consequences before entering a guilty plea. Former law only allowed challenges while a person remained in custody and thus severely restricted the ability to bring such challenges especially since many people only learn of the severe immigration consequences of their conviction either directly after completing their sentence or many years after the fact.
Criminal convictions for even seemingly “minor” offenses can have major devastating consequences in the immigration realm. Convictions for common offenses like theft, drug possession or sale, shoplifting, or domestic violence can result in permanent bars to citizenship or green cards and can result in deportation.
An “aggravated felony” conviction (which may be neither aggravated or a felony under criminal law) subjects a person lawfully in the United States to removal and leaves little defense from removal. At first blush these consequences might seem fair enough. The person has been convicted of an “aggravated felony” after all and so must have committed a serious crime. Wrong. The INA defines aggravated felony to include minor offenses like the ones listed above. For instance, a person convicted of any type of theft offense who receives a one-year sentence (even if the sentence is suspended and the person never spends a day in jail) will be included in the definition of an aggravated felon. The same would be true for a person convicted of crimes of violence, including assault, assault regardless of the severity or circumstances of the assault if a one-year sentence is imposed.
Most immigrants and many criminal defense attorneys are unaware of the draconian consequences that follow these convictions. The result is that persons enter guilty pleas to these seemingly minor offenses (whether to avoid either exposure to more serious charges or the cost or time of fighting the charges, or both), receive what appears seems to be a good deal from criminal authorities but then tragically learn that they are forever barred from citizenship, face certain deportation or other harsh immigration consequences.
Former California law offered little recourse for persons in this situation to challenge the validity of their underlying criminal conviction. While many states have laws allowing such challenges, the legal framework of California’s system required that any such challenge be brought while the person was still in “custody’ of the state of California. The new law has no time limit and no requirement that the person still be in custody of the State at the time the motion is filed. The law provides that a motion to vacate a criminal conviction or sentence can be brought at any time on the grounds of “prejudicial error that damages the defendant’s ability to meaningfully understand the immigration consequences of the conviction or sentence, defend against them, or knowingly accept them.”
The ability to bring a motion challenging an old conviction even after service of the full sentence and completion of parole and/or probation is a huge development for persons suffering from harsh immigration consequences of convictions. However, simply making a perfunctory motion will not be enough to win such claims and vacate old convictions. Judges and prosecutors are likely to push back against overturning old convictions unless motions are carefully prepared and well-documented to meet all the requirements under the law.
Central to winning in this type of case will be presenting a clear case to the criminal court laying out the harsh consequences of the conviction, solid proof that the person would have not accepted the plea agreement had the harsh consequences been properly explained and understood, and that there would have been some other rational course of action for the defendant, like proceeding to trial or crafting some alternative reasonable plea agreement. Each of these elements must be carefully explored and then strongly supported in the motion to vacate a conviction.
The new law has opened a pathway to immigration benefits like permanent residency, naturalization, relief from removal, and possibly reopening of old removal and deportation orders to persons who were previously stuck. Determining whether you or a loved one might benefit from this new law will involve a detailed and careful analysis of the circumstances of each individual case. If you or a loved believes that this new law might apply you should contact an experienced and reputable immigration attorney as soon as possible to discuss your case.
