Vacating Conviction for Immigration

One of the most significant impacts of a criminal conviction can be the immigration consequences that may follow.  Negative immigration consequences are often the primary concern for non-citizen defendants in criminal cases.  Unfortunately, many criminal defense attorneys have not familiarized themselves sufficiently with Federal immigration law and procedures, and therefore cannot provide adequate representation to their clients in criminal court.  Many defendants have been misinformed of the consequences of a criminal conviction by their own criminal attorneys, their own immigration attorneys, the criminal courts,the prosecution, police, and even friends and family members.

In January 2017, a new law, Penal Code Section 1473.7, went into effect permitting Californians who have already been released from custody to file a motion to vacate a conviction or sentence based on either of two claims: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or no contest, or (2) newly discovered evidence of factual innocence.  In essence, the new law extends a habeas-like right to a review of conviction, with a statutory right to a hearing, to those who have already served their sentence.  This was necessary because many defendants only learned of negative immigration consequences years after they had already completed their sentence, whether due to the initiation of removal proceedings, or efforts to change status and pursue permanent residency and/or citizenship.  Previously, motions to withdraw plea required the moving party to affirmatively prove that they were misadvised, and also had to overcome prompt time constraints.  This new law gives those suffering negative immigration consequences from past convictions some hope to restore and advance their immigration status.  The moving party needs to show only by a preponderance of the evidence that the defendant did not properly understand the consequences or that there is new evidence of factual innocence.

Though it has become a common practice in most criminal courts to advise all defendants of immigration consequences at the time of a plea, the advisals are not always given, and much more often not properly understood.  Additionally, people have plead guilty despite their own innocence out of fear of more serious consequences.  The California legislature has come to understand how serious these consequences are for people, and is working to give non-citizens an renewed opportunity.  California joins 44 other states in now offering a mechanism for challenging unlawful convictions after a sentence has already been served.

There is a "reasonable diligence" time constraint, so if you have suffered a negative immigration consequence, or may in the future due to a prior conviction, it is important to move quickly.  The law does not require a removal order to have already been issued, and negative immigration consequences do not just include removal.  Individuals interested in applying for or renewing visas, green cards, naturalization or any other immigration benefit can also file a motion to vacate if vacating the plea will improve the likelihood of success in that process.

Our firm has successfully vacated damaging convictions, helping clients achieve citizenship and avoid removal, even prior to the new law through a strong understanding of immigration consequences, zealous advocacy, and strong written motions.  With new laws extending the ability to vacate a plea to more people, our firm looks forward to keeping even more families together.  CALL NOW FOR A FREE CONSULTATION WITH A PASSIONATE, AGGRESSIVE LOS ANGELES CRIMINAL LAWYER 213-375-3775.

Additional Resources
Immigration Consequences of Criminal Convictions
Immigration Law Resource Center
Full Text of Penal Code Section 1473.7

If you or a loved one is suffering negative immigration consequences, including deportation, removal, denial of admission, denial of naturalization, visa, green card, citizenship, or relief from such consequences due to a prior conviction, contact the Law Offices of Nicholas Loncar now to speak with an experienced Los Angeles Criminal Defense Attorney about your case.  It may be possible to correct the past.  CALL NOW FOR A FREE CONSULTATION WITH A PASSIONATE, AGGRESSIVE LOS ANGELES CRIMINAL LAWYER 213-375-3775.

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