Post conviction relief

Many criminal charges have a drastic impact on a non-citizen’s immigration case. Most people who seek post conviction relief are charged with being either inadmissible or deportable. Several criminal charges also pose a threat of harming a non-citizen’s “Good Moral Character,” which may result in the non-citizen becoming ineligible for citizenship or other immigration benefits. In most cases, the only way to assure that a conviction will not cause immigration harm is to vacate the conviction based on a specific ground of legal invalidity.

Relief after A Conviction

Criminal convictions can have complex legal implications for a non-citizen. The applicable rules are constantly changing and are specific to the person’s immigration status as well as their criminal record. 

Consequences of a Criminal Sentence

If you are a non-citizen who has been charged with a crime, it is important to consult an experienced immigration attorney. The definition of a “conviction” for immigration purposes may differ from what most people consider a “conviction”.

Many criminal charges have a drastic impact to a non-citizen’s immigration case. Most people who seek post conviction relief are charged with being either inadmissible or deportable. Several criminal charges also pose a threat of harming a non-citizen’s “Good Moral Character,” which may result in the non-citizen becoming ineligible for citizenship or other immigration benefits.

The most common basis for relief in a post-conviction relief petition is that a client did not receive effective assistance from an attorney in connection with a guilty plea, at trial, at sentencing, or on appeal. If a judgment is vacated for cause due to Constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes.

The judgment is considered a conviction for immigration purposes if it was dismissed for any other reason, such as completion of a rehabilitative period (rather than on its merits) or to avoid adverse immigration consequences, for example expungement.

A record of conviction that has been expunged does not remove the underlying conviction. For example, an expunged record of conviction for a crime of moral turpitude does not relieve the applicant from the conviction in the immigration context. In addition, foreign expungements are still considered convictions for immigration purposes.

The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration purposes.

Under many circumstances, the sentence imposed as a result of the conviction can also cause drastic immigration consequences. Similar theories apply to modifications of sentences. “Term of imprisonment or a sentence” generally refers to an individual’s original criminal sentence, without regard to post-sentencing alterations. Therefore, state-court orders that modify, clarify, or otherwise alter a criminal alien’s original sentence will only be applicable for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

For a conviction to cease to exist for all immigration purposes, it must be vacated on a ground of legal invalidity. For many immigrants, that ground of legal invalidity will be based on a claim that defense counsel failed to inform them, and/or to defend against the immigration come consequences. A conviction vacated where a criminal court failed to advise a defendant of the immigration consequences of a plea, which resulted from a defect in the underlying criminal proceeding, is not a conviction for immigration purposes.

The risks involved in a criminal case, if you are not a citizen, are especially high. Those who are convicted of crimes risk deportation and separation from their families. Contact the experienced immigration attorney Janell Somera, for assistance in preparing post-conviction relief petitions.