Certain people may be able to challenge their convictions and avoid deportation.
A new California law may help some immigrants avoid deportation, if they meet certain criteria. The law, which went into effect in October 2016, is known as “Criminal Procedure: Post conviction Relief.” It allows people who have claims of innocence, or those whose attorneys failed to warn them about the immigration consequences of a plea deal to challenge convictions. In this way, people with criminal records may be able to avoid deportation, which is particularly important in a time where immigrants with criminal histories are being specifically targeted for removal by the current administration.
California law requires defendants who are not citizens to be informed of the potential immigration consequences of convictions and plea deals in criminal cases. Despite this requirement, some criminal defense attorneys do not fully inform their clients of these consequences. When these defendants do not understand the consequences of pleading guilty to felony and other crimes, they may have unknowingly opened themselves up to deportation in the future.
Under current federal law, there are five types of crimes that make non-citizens subject to deportation: crimes of moral turpitude (crimes of dishonesty, fraud, or antisocial behavior), aggravated felonies, drug offenses, firearms offense and domestic violence crimes. If a person is in the United States on a visa, without documentation, or as a green card holder and has been convicted of one of these crimes, he or she may be targeted for deportation.
However, the new law may provide significant relief for immigrants who may otherwise be deported under federal law. Essentially, this law gives immigrants a new way to file a motion to vacate a California criminal conviction. Once a person is no longer in prison or otherwise in custody, he or she can file a motion to vacate the conviction. This motion must allege one of two things:
- Evidence of actual innocence has been newly discovered, which requires vacation of the the conviction or sentence; or
- The conviction or sentence is legally invalid due to a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequence of a plea of guilty or nolo contendere.
This motion should be filed promptly, with “reasonable diligence” after the Department of Homeland Security has issued either a Notice to Appear or a final removal order. A person who files a motion to vacate based on this law is entitled to a hearing.
This law has the potential to help many immigrants who truly did not understand the potential immigration consequences of their not guilty or no contest pleas at the time that they were made — or who have a legitimate claim of actual innocence.
If you are an immigrant who wants to learn more about the possibility of vacating your criminal record, contact the Chambers Law Firm at 714-760-4088 or dchambers@clfca.com for a free initial consultation. We are experienced Los Angeles criminal defense attorneys who understand the complexities of California law, and will aggressively defend your rights and freedom.
