There are particular offenses in California whose conviction could affect a person’s immigration status. If the person is not a United States’ Citizen, they may face deportation if already in the country and not be admitted if they seek admission, or have their request for naturalization denied even if they are qualified. These offenses are, for example, violent crimes, crimes categorized under aggravated felonies, like sexually assaulting a minor, and those crimes categorized under crimes of moral turpitude, like theft and fraud.
Before standing trial for these offenses, the law requires the offender to be well informed about the consequence of a conviction on their immigration status. If this does not happen and you are convicted, you may be able to file a motion in court to vacate or set aside your conviction. For more information regarding this matter or if you need an experienced attorney to take you through the process, contact the Leah Legal team in Van Nuys, CA.
Understanding the Meaning of Inadmissible Crimes
Every conviction in California brings with it severe consequences whose severity is determined by the nature of the offense and the offender’s criminal record. Some crimes are severely punished than others, though each conviction affects the life of an offender differently. If you are not a legal citizen of the United States, some sentences will hurt your immigration state. As mentioned above, you could be deported, be denied entry into the country, or lose your chance for naturalization. That is why engaging a competent attorney’s service is essential if you or your loved one face a conviction for a serious felony.
There are several offenses in California whose conviction will affect your stay or admission in the country. The violations are called inadmissible crimes, and they are:
Crimes of Moral Turpitude
These are offenses that involve corruption of one’s essential social duties that he/she owes to other people and society. They include the antisocial conduct that consequently harms other people or the social good. Examples of crimes of moral turpitude include:
- Assault by use of a deadly weapon
- Cultivation of marijuana
- Grand theft auto
- Receiving stolen property
- Possession of controlled substances for sale
- Grand theft
- Repeated felony DUI convictions
If a person is convicted of a drug-related offense or admits to all the elements of a drug-related crime, the conviction will affect their immigration status. Note that this applies to both state and federal convictions. Examples of drug-related crimes are:
- Manufacturing of illegal drugs
- Transportation or transportation for sale of controlled substances
- Possession of controlled drugs for sale
- Simple possession of controlled substances
A person is also declared inadmissible in the US if they have convictions for more than two offenses and the sentences they received for all those crimes total to more than five years. Note that this does not depend on the type of offense you have committed.
If your offense falls in any of the categories above, your attorney is required by law to advise you accordingly about the consequence of a conviction on your immigration status. Additionally, the court is required to do the same before allowing your plea of guilt. If that does not happen and you are eventually convicted, you will file a motion to set aside the conviction.
By filing a motion to set aside the conviction, you admit you did not fully understand the consequence of your guilty plea, so you want to withdraw it. The procedure that follows is called vacating or setting aside a conviction. Remember that this motion is only allowed on two grounds, namely:
- That the court did provide adequate advice on record, which is a violation of Section 1016.5 of California Penal Law
- That your lawyer did not provide sound advice, which is a violation of California Penal Law 1437.7
Let us discuss this further.
Vacate or Set Aside a Sentence Under California Penal Code 1016.5
California Penal Law 1016.5 states that before a person enters a plea of guilt to a particular offense, the court must advise him/her on record that if they are not citizens of the United States, a conviction for that offense might lead to deportation, inadmissibility to the U.S or their application for naturalization will be denied. The same law allows the offender to move a motion in court after conviction, to vacate that conviction if the court did not fulfill its mandate of providing the required advice.
Therefore, a defendant must at least be informed of all the three likely consequences of their plea. If the effects are not correctly articulated, the advice will be inadequate, and the judge will be guilty of failing to comply with this law’s provisions. It means that if the defendant did not understand the consequences based on how the court delivered the information, it would be assumed they were not adequately advised and so will be allowed to withdraw their plea. If the prosecutor cannot refute that presumption, the court will have to vacate the conviction and withdraw the defendant’s plea of guilt.
The prosecutor and your attorney can then settle on an appropriate charge you could plead guilty to, which will not have severe consequences on your immigration status.
Example: Mark is facing charges for aggravated sexual assault of a minor, violating California Penal Code Section 269. It is an offense whose conviction might affect his immigration status. Mark has been living and working in California for three years now. At the beginning of the trial, the court tells Mark that if he is found guilty of the offense, he may be deported, and after that, he will be prevented from entering the country again. Mark is found guilty and is facing the harsh reality of deportation.
However, his attorney advises him to move a motion to set aside the conviction on the grounds that the court did not adequately advise him on the consequence of a sentence. Mark is right because the court’s information was insufficient and was not provided exactly as it is in the constitution. Thus, Mark did not understand what the immigration consequence of the conviction entailed.
Based on that, the law will compel the court to drop the conviction. Mark’s attorney and the prosecutor will then advise him to plea to another charge, whose conviction will not carry the deportation consequence.
Remember that the law does not require the court to advise the defendant about the immigration consequences of a conviction and provide the advice on record. If the court advised the defendant, but it was not on paper, the defendant may still move a motion in court to vacate the conviction.
What the Defendant Must Show
The success of a defendant’s motion to set aside a criminal conviction under California Law Section 1016.5 is based on the following:
- The motion must be timely.
The time the defendant moves the motion to court is crucial. It means that the time must be reasonably after the defendant has discovered the potential effects the conviction has on his/her immigration status. California law requires the defendant to investigate the matter and act quickly before the motion is deemed untimely.
Example: A conviction took place in 2001. The court put the defendant on removal proceedings in 2004. She hires a lawyer, who removes her from the proceeding temporarily. She later learns her 2001 conviction will cause her to be deported, affecting her admission to the country or her naturalization. She also finds out that she needs a lawyer to help her file a motion in court to set aside the conviction to free herself from its severe consequences on her immigration status. However, she waits until 2010 to move a motion in court. In this case, the court will render the motion untimely.
- The conviction must have at least one of the three consequences.
- That the court failed to advise you on at least one of those consequences
- That there is a likely chance that you would not have entered a guilty plea had you been adequately
The court will require the defendant to demonstrate the reasonable probability that they wouldn’t have entered a guilty plea to the offense had they been appropriately advised. He/she may be required to testify through a sworn statement. He/she may do so by demonstrating to the court that they understood that the immigration consequence of their conviction prevailed in severity over any jail time they would have received had they not pleaded guilty. It could also be, had he/she known the seriousness of the three consequences, they would have asked their lawyer to negotiate with the court for a more favorable outcome.
If the judge finds the above situation reasonable, he/she may consider allowing the defendant to put forward a motion to vacate the conviction.
Vacate or Set Aside a Verdict under Section 1437.7 of California Penal Law
Section 1437.7 of the California Penal Code states that a conviction is legally unacceptable if there was a prejudicial error that made it impossible for the defendant to understand, defend themselves against, or willingly accept the potential or actual consequences the conviction has on their immigration status.
Again, a motion to set aside a sentence under this law must be moved with reasonable diligence following these, whichever of them comes first:
- The date the defendant receives a notice requesting him/her to appear in an immigration court
- The date when the court’s order for the defendant’s removal becomes final
The defendant’s motion to set aside or vacate the conviction will succeed only if:
- There is reason to believe that the defendant acted in due diligence, which shows that the motion was moved promptly.
- That indeed, the defendant is a victim of prejudicial error, which means that he/she couldn’t understand or agree to suffer the consequences their plea had on their immigration status because their attorney failed to advise them on those consequences adequately.
Under this law, a motion is said to be moved on time if after receiving a notice from the immigration court stating that his/her conviction had subjected them from removal, or the removal had been final, the defendant made the right steps at that instant to set aside the sentence. It is what the law means by acting with due diligence. If the defendant took the time to file a motion to set aside the verdict, he/she would be said not to have acted in due diligence. Consequently, their motion will not be acceptable by the court.
Example: Mary was facing charges for California murder. The court convicted her of an aggravated felony in 2006. Among the effects of the conviction that Mary faces is denial for naturalization. Mary’s attorney did not adequately advise her of the immigration consequences she might face if she pleads guilty to murder. In 2010, Mary received a notice that she is supposed to attend a hearing in an immigration court for her removal proceedings following her 2006 conviction. Mary hires a lawyer, who advises her to move a court motion to set aside her conviction under California Penal Law Section 1437.7.
If Mary acts almost immediately, the court will realize that she proceeded with due diligence and will accept the motion to set aside the conviction. However, if it takes her several years to file the motion, she may lose her chance to vacate the sentence and then face the conviction’s full consequences.
A prejudicial error is another ground on which a defendant can file a motion to set aside a conviction in California conviction. A prejudicial error would have occurred in the following situation:
- The defense counsel did not adequately advise the defendant before taking a guilty plea. The law requires a defense attorney to investigate and adequately advise their clients about the exact immigration consequences a certain conviction carries if they plead guilty to the charges they are facing. If this doesn’t happen, the defendant can convince the court to set aside the sentence and give him/her another chance at trial.
- The defense team has failed in defending their client against the immigration consequences a particular conviction carries while trying to negotiate with the prosecution team for an alternative disposition that is immigration-safe.
- If the offender did not meaningfully comprehend the immigration consequence, the conviction carried. The defendant may have been well advised by his/her defense attorney but did not understand the gravity of immigration penalties.
In any of the above situations, the court will agree that the defendant suffered a prejudicial mistake, and so has a right to move a motion in court to set aside or vacate the conviction.
Note that, just as mentioned earlier, merely mentioning the immigration consequences of a conviction isn’t sufficient to prove that the defendant was adequately advised or he/she well understood those consequences. The law requires your defense attorney to inform you of the exact immigration consequence you might face if you are convicted for the charges you face.
Example: Tim is facing charges for transportation for sale of illegal substances near a school. His attorney realizes how serious the charges are, and so he advises Jim to plead guilty to transportation for sale of illicit drugs to avoid a sentence enhancement. His attorney then warns him that doing so might affect his efforts to be admitted into the country.
You realize that Jim is not adequately advised about the consequence of the conviction he is facing. For that reason, he can move a motion in court to set aside his conviction based on prejudicial error. His attorney owed him a duty of detailed information on the consequence of pleading guilty to possession for sale of illegal substances, but he/she failed in that duty.
If Jim moves the motion under Section 1437.7 of California Penal Law, the court might grant the motion. It means that the court will dismiss the previous conviction, and the court will require Jim to stand trial for another chance that does not have the immigration consequence.
It is not a simple motion to support in court, and so, the help of an experienced attorney is required to ensure that the motion is granted and that your immigration situation is not affected.
Find Post Conviction Relief Services Near Me
If you or your loved one is about to face severe immigration consequences for a previous conviction, talk to us. At Leah Legal, we have the resources needed to examine the details of your sentence to conclude whether you have a right to relief under Sections 1437.7 and/or 1016.5 of the California Penal Code. We will then help you file a strong motion in court, detailing how the law applies to your case’s details. Call us at 818-484-1100 if you are in Van Nuys, CA, and let us help you attain a favorable and just outcome.