Upon entering a plea of guilty or no contest in criminal court and if the court does not advise a defendant facing immigrant consequences such as deportation, in immigration court, then Penal Code Section 1016.5 provides the immigrant defendant facing adverse immigration consequences as a result of the plea to withdraw the plea.
Once the plea is withdrawn, the court vacates the conviction. Essentially this means that the conviction is erased from the defendant’s record. It is important to note that once a plea is vacated United States Immigration Services cannot use the conviction against you in Immigration Court as a reason to remove you from the United States.
In criminal court, it is important to note that a defendant that successfully vacates his or her conviction must be aware that the prosecutor can seek to instate the charges a new.
The reason that the prosecutor can reinstate the charges is that the procedure or process was flawed (a prejudicial error occurred) and now with the immigrant defendant’s correct understanding he or she can now readily and knowingly accept any potential immigration consequences and the immigrant defendant can now choose to accept a negotiated disposition or take the matter to a jury trial.
It is important that the conviction be vacated on Constitutional grounds because case law holds that a conviction dismissed or reduced for rehabilitative purposes has no effect on immigration proceedings. To be sure to obtain the appropriate advice for your specific situation please contact Uribe & Uribe APLC for a consultation.
Uribe & Uribe APLC
Nothing can impact your life or the life of a family member more than one’s immigration status. Are you interested in obtaining immigration benefits? Do you have a plan in action for success? At the Uribe & Uribe APLC we can help you create a strategy for success.