Why would a noncitizen want to clean their criminal record? To avoid being removed or deported from the U.S., to become admissible and allowed enter the U.S., and/or to become eligible for relief providing for a green card and citizenship.
There are several forms of post-conviction relief in California that may clean a noncitizen’s record, including: motion to reduce felony pursuant to Penal Code §17B, motion to dismiss a criminal conviction pursuant to P.C. §1203.4, and motion to vacate conviction. A 17B motion to reduce only applies if the conviction is a wobbler, an offense that can be charged as felony or a misdemeanor. A motion to dismiss is only effective in the 9th Circuit (which includes California) where the underlying offense is related to being a first time offender of drugs [1]. Thus, in most circumstances, a motion to vacate is a noncitizen’s best vehicle to eliminate his original conviction for immigration purposes. Your Lavy attorney will advise you of what vehicle is the best one to reopen and clean your case.
The Immigration Court will not view every motion to vacate as eliminating the conviction for immigration purposes. Rather, only motions to vacate that are based on cause or upon specific procedural and/or substantive violations of state law.[2] Whereas the normal procedure in immigration is to look to the state statute, in this particular area of law, the courts take a different approach, reviewing the language in the motion, the hearing’s transcripts, and the conversation on the record. Therefore, it is very important that your immigration counsel refrains from mentioning immigration hardships or the defendant’s rehabilitative actions in the pleadings, and instead identifies specific procedural and/or substantive violations of state law that render the plea illegal. Your Lavy Lawyer recognizes the importance of drafting a motion that will be accepted not only by the criminal court, but also the immigration court.
Failure to Advise : Within the immigration context, the most relevant ground for a motion to vacate is to argue ineffective assistance of counsel based on prior counsel’s failure to advise of immigration consequences.[3] For over 25 years, California courts have held that criminal defenders have an obligation to advise about the actual and specific immigration consequences of conviction under Article I, §15 of the California Constitution as well as the Sixth Amendment to the U.S. Constitution. [4]. Your Lavy Lawyer will tell you the immigration consequences that your prior counsel failed to tell you, and this will form the basis of your argument to the judge.
Failure to Defend: The duty to advise of immigration consequences does not stop short at just advising the client of the impending immigration disaster. Rather, counsel’s duty extends beyond- to attempting to avert the disaster. A failure to defend is another ground for ineffective assistance of counsel and way to reopen your criminal case. Your Lavy Lawyer will help you understand how your prior attorney failed to defend you from immigration consequences by explaining to you Safe Pleas To Avoid Removal.
Affirmative Misadvice: California law has recognized affirmative misadvice to be ineffective assistance since 2001.[5] In re Resendiz, the court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. Even among the federal and other courts cited by the Attorney General, “the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance.”[6]Your Lavy attorney will help you identify any misadvice that your prior counsel gave you and how this can help your case.
What will be the District Attorney’s arguments against you trying to reduce, dismiss or vacate your conviction? To find out, click here.
Are you ready to clean up your record so you or a loved one can stay in the U.S., enter the U.S., or become a green card holder/U.S. citizen? If so, please call us today at (212) 321-0226 for a consultation with a Lavy Lawyer.
[1] See Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (holding that first-time drug
possession offense expunged under state law is not a conviction). But see Matter of Roldan, 22 I & N Dec. 512 (BIA 1999) (expungements and sealings are no longer effective to prevent unfavorable immigration consequences, including admissibility and removability.)
[2] See Ali v. Ashcroft , 395 F.3d 722, 729 (7th Cir. 2005) (finding that petitioner remained “convicted” of an aggravated felony even after his felony controlled substance conviction was reduced to a misdemeanor drug possession.)
[3] See Strickland v. Washington , 466 U. S. 668 (1984); People v. Soriano (1987) 194 Cal.App.3d 1470, 1478-79.
[4] See Soriano, supra 194 Cal.App.3d at p. 1478-79.
[5] See In re Resendiz , 25 Cal.4th 230, 248 (2001).
[6] U.S. v. Mora -Gomez, supra, 875 F.Supp. 1208, 1212 (1995). Padilla decided two distinct claims, the first holding was that counsel’s affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. (See Padilla, supra 559 U.S. at p. 356.) The Supreme Court in Chaidez explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding. (See Chaidez, supra 133 S.Ct. at p. 1103.)