Types of Post Conviction Relief

POST CONVICTION RELIEF

It is not uncommon to see a noncitizen convicted of a criminal offense that triggers some adverse immigration consequence that was unknown at the time the immigrant entered a plea. There are several ways how this situation can come about.

• The defendant represented himself and did not have the advise of an experienced attorney, regarding the immigration consequences of the plea.
• When the defendant is represented by counsel the necessary information does not make it through into the client’s understanding, that is when the court or prosecutor gives the defendant the immigration admonitions the defendant does nt understand the fine print on the plea form or does not understand the mumbo jumbo of the plea colloquily.
• His counsel fails to advise the client concerning the actual consequences of the plea, in violation of the duty imposed by the case law.
• The adverse immigration consequences did not exist, or were not as serious when the plea was entered.
• As a consequence of one of the above the plea was entered, and for some reason gets into the hands of the Department of Homeland Security and deportation proceedings are begun.
  Under the above scenario the only way to relieve the situation is to obtain post conviction relief.

The following is a brief overview of the relief available in California:

• Rehabilitative Relief:
  The Board of Immigration Appeals held that dismissal of convictions under state rehabilitative relief statutes are no longer effective in eliminating a conviction for immigration purposes.The Ninth Circuit reversed the decision, and held that persons whose offenses qualify for treatment under the First Offenders Act who are convicted and had their convictions expunged under state laws may not be removed on account of those offenses This applies to noncitizens convicted of first offense simple possession of any controlled substance.

  An expungement does not eliminate immigration consequences of a conviction except for first-offense simple possession cases in which there has been no prior expungement.

• Reduction of Felony to Misdemeanor and Misdemeanor to an Infraction:
  A judge can reduce convictions of “wobblers” from felonies to misdemeanor in imposition of sentenced was suspended.
  The motions are useful to avoid a one felony or two misdemeanor bar, which exists in programs such as amnesty, Family unity, and TPS and may avoid aggravated felony status for certain “crimes of violence”.

• Vacating of Judgment by Extraordinary Writs:
  A judgment can be vacated on the ground of legal invalidity, that was in existance at the time the conviction arose. If the vacating the conviction is successful the conviction is eliminated and has no immigration consequence.

• Habeus Corpus:
  A common basis for granting a petition for a writ of habeaus corpus is a claim that criminal defense counsel did not inform the defendant in advance of the specific consequences of the plea bargain.
  Habeaus corpus may be raised not only to vacate the plea of guilty but in the alternative to leave the conviction intact, but vacate only the sentence.

• Coram Nobis:
  A writ of coram nobis may be granted in the discretion of the court, if a fact existed did not go to guilt or innocence but would have prevented the rendition of the judgment if it had been known at the time. This method has been eliminated by case law, except in very limited circumstances.

• State Advisal Statute
  A statutory motion to vacate the judgment under Penal Code 1016.5 must be granted if th court did not provide a warning about each of three specific potential immigration consequenses , deportation, exclusion from a dmission, and denial of naturalization. The claim is raised as motions to vacate based on the statute itself.

• Nonstatutory Motion to Vacate
  A nonstatutory motion to vacate th judgment may sometimes be granted on grounds of ineffective assistance of counsel or any other grounds of constitutional error.

• Motion to Withdraw Plea
  If imposition of sentence has been suspended, and probation granted, the defendant may apply within six months of sentence to withdraw the guilty plea for good cause, under Penal Code section 1018.

• Other Relief
  A gubernatorial pardon would eliminate immigration effects of a crime involving moral turpitude or an aggravated felony.
  Destruction of marijuana records under Health and Safety Code section 11361.5 might prevent the Department of Homeland Security from proving a conviction if the agency has no longer formal records .
  Sealing juvenile records may be useful to prevent authorities from obtaining evidence to use to exclude an immigrant.
  For more information about what type of post conviction relief can help you in your specific situation, talk to one of our post conviction relief lawyers today.