Post-Conviction Relief for Immigrants
President Donald Trump has recently promised to deport 2 to 3 million immigrants currently living in this country. Trump is proposing to deport the “criminal” element – many of these people we know as honest and hard-working neighbors, fathers, brothers, and members of our community. Most of these “criminals” Trump is talking about made a single mistake which in no way represents their character.
There are several ways an immigrant may clean up a criminal record so as to help defend against possible deportation. If you are an immigrant, whether you have a green card or are undocumented, you should do everything you can to clean your record in the face of a probable crackdown under President Trump.
There several ways to improve the way a conviction looks or to “invalidate” the conviction all together. The State of California has even passed several laws specific to immigrants to assist in cleaning up a record.
These are the most common ways to attack a criminal record:
Penal Code section 1473.7
This is a new law recently passed to provide people a way to clean up a criminal record after a person has already completed probation or parole. The new law provides that a person may vacate a conviction, no matter how old the case, provided that either:
- the person has new evidence showing that he or she was innocent of the crime, or
- that the person’s attorney failed to properly advise about immigration consequences or to defend the case in light of the persons immigration status.
The immigration prong is likely where most immigrants will find good arguments. Many criminal defense attorneys fail to take immigration consequences seriously when negotiating pleas and as a result their clients end up with convictions that lead to harsh immigration consequences later.
If a person is still in prison, on probation or parole, a conviction may be challenged via a writ of habeas corpus. Immigrants may petition for a writ of habeas corpus where they were innocent of the charges or where their attorney failed to advise them about immigration consequences or to investigate or attempt to negotiate a better plea with less severe immigration consequences.
Invalidating a Drug Diversion Conviction
Penal Code section 1203.43 is a new law which allows immigrant who were given drug diversion under Penal Code section 1000 to “invalidate” the conviction. This is different than the dismissal ordinarily given following completion of the program. A separate motion under this code section must be made or the immigrant will be deportable.
Following legalization under Proposition 64, most convictions are eligible either to be reduced or dismissed. This is not automatic and an application must be made to the court. An old conviction that has not been dismissed or resentenced could still lead to deportation.
Other important Relief for Immigrants:
Gang Member Lists and Databases
This may be a significant issue for some people who have never been convicted of crimes. President Trump has pledged to deport “gang members.” Lists and databases of gang members maintained by California law enforcement agencies are notoriously riddled with errors. Under Penal Code section 186.34 anybody who is concerned that they may be included in such a database can make a formal request to police agencies to find out if they are included on any database. New laws provide that a person who is wrongfully listed on the database may petition to be removed.
Expunging a Case
Penal Code section 1203.4, commonly called “expungement”, allows a person to have their case dismissed after they have completed probation. The law is great at clearing a criminal record for background checks, but has limited value in the immigration realm – the Federal Government will still consider the case a conviction, but it may help in cases where the government has discretion on whether or not to allow the immigrant to remain in the country, depending on the facts of his or her circumstances.
Reducing a Sentence to 364 Days
Under Federal immigration law, many California misdemeanors were categorized as “aggravated felonies” when a sentence of 365 days was imposed. Under Penal Code section 18.5, the state changed the law to make the maximum misdemeanor sentence 364 days. As of January 1, 2017 this law will become retroactive and an immigrant may seek reduction of the original sentence.