Writ Of Habeas Corpus

WRIT OF CORAM NOBIS

GUBERNATORIAL PARDONS

CALIFORNIA PENAL CODE SECTION 1016.5

CALIFORNIA PENAL CODE SECTION 1203.43

CALIFORNIA PENAL CODE SECTION 1473.7

CALIFORNIA PENAL CODE SECTION 1192.5

IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS

If you are not a U.S. citizen and have been convicted of a crime, you could face deportation, a bar from naturalization, and denial of reentry into the United States as a result of your conviction. The reality is that not every conviction will lead to deportation. The attorneys at Uribe & Uribe APLC are here to help you achieve your immigration goals, whether that means, maintaining your legal status or obtaining legal status. The first step in the post-conviction process is examining the circumstances of your conviction to determine what post-conviction vehicle or motion best suits your needs. In layman’s terms, your past conviction or convictions will be examined from every angle to ensure you have the best chance to achieve your post-conviction goals. A thorough investigation must be done to determine what your best option is for post-conviction relief. A thorough investigation involves an in-depth examination of all of the court-related documents in your case. In a typical case, those documents include the court reporter’s transcript, your attorney’s file, the court’s file, as well as other evidence that may lead to a cause of action to be prosecuted in a motion to vacate.

Consequences of a Conviction

A criminal conviction on your record no matter how old the conviction is can lead to serious immigration consequences such as deportation, exclusion from admission to the United States, or denial of naturalization. Unfortunately, this consequence is one that disproportionately affects non-citizen immigrant defendants in criminal court. Far too often a criminal defense attorney representing an immigrant defendant client leads his or her clients into immigration peril by advising the client to plead guilty without taking into account the adverse immigration consequences that will befall them. Clearly, this type of representation falls below a standard of professional care that can lead to a claim of ineffective assistance of counsel against the attorney that misled the immigrant client. If you have a conviction on your record it may be necessary to vacate or modify the terms of the conviction so that you do not suffer harsh immigration consequences in Federal Immigration Court. The role of post-conviction counsel in this scenario would work to either completely vacate your conviction or short of that work with the prosecutor to seek an immigration-neutral plea in place of the offending conviction on your record.

What Types Of Criminal Convictions Can Lead To Immigration Consequences

It is important to note that any criminal conviction—and in some cases, criminal conduct, even if it does not lead to a conviction—could have consequences for the immigration status of a noncitizen or immigrant defendant. The reason is that many decisions as to whether to grant a particular immigration benefit—including naturalization—are left to the discretion of federal immigration authorities. Criminal conduct or a criminal conviction of any kind can be taken into account by those authorities in making discretionary determinations. Certain classes of convictions trigger automatic provisions of immigration law which render a noncitizen deportable (or “removable”) and possibly subject a non-citizen to mandatory detention. Many of those same classes of convictions will make a noncitizen ineligible for discretionary waivers or other forms of relief that may allow them to stay in the country even if they are considered deportable. In making a determination of whether your criminal conviction will cause adverse immigration consequences an investigation into the applicable immigration law must be done. Below is a brief overview of common crimes that cause adverse immigration consequences.

Catagories of Conviction that Have Immigration Consequences

Aggravated Felony (AF):

This will be the worst category of criminal offenses for immigration purposes for lawful permanent residents (LPRs) and individuals seeking asylum. Its name is misleading because the offense needs to be neither “aggravated” (as that term may be commonly understood) nor a “felony” under state law for it to be an “aggravated felony.” The list of what this category includes is long, but the most common offenses charged as aggravated felonies are murder, rape, sexual abuse of a minor, drug-trafficking crime, and certain subcategories of crimes which meet a certain threshold: for example “crimes of violence,” “burglary” or “theft offenses” for which a sentence of 1 year OR more is imposed, or “fraud” offenses in which the loss to the victim exceeds $10,000. When a noncitizen’s conviction falls into this category, the consequences are severe: the individual will face mandatory detention, almost certain deportation, will be ineligible for virtually all forms of relief, and he or she will face criminal penalties of up to 20 years in federal prison for illegal reentry after a conviction for an aggravated felony.

Controlled Substances Offenses (CS):

This is another category that will result in drastic immigration consequences for most noncitizens. This category encompasses offenses “relating to” a controlled substance as defined by federal law, and it, therefore, encompasses simple possession and distribution offenses involving substances covered by federal drug schedules (if the substance is regulated only by the state, it is not covered). A conviction in this category often renders undocumented immigrants ineligible to apply for legal status (and therefore subjects them to mandatory deportation).

Crimes Involving Moral Turpitude (CIMT):

A broad category of criminal offenses, this category is as vague as its title suggests. One often feels that the courts’ take on “moral turpitude” is the same as their take on “obscenity”: they know it when they see it. However, there is considerable case law guiding this analysis. Generally, the following types of crimes are found to be CIMTs: offenses involving theft or intent to defraud; offenses involving intent to cause bodily harm, or offenses involving recklessness that result in serious bodily harm; and most offenses involving sexual conduct. CIMTs do not render a noncitizen removable in every case—the impact of a CIMT will depend on the immigration status, the timing of the offense, prior criminal record, and actual and potential sentence for the offense.

Crime Against Children (CAC):

Another broad category of crimes that encompasses any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that qualifies as maltreatment, and harms a minor’s mental or physical well-being, regardless of proof of actual injury or harm to the child.

Other categories of offenses are more specific: crimes of domestic violence (CODV), and firearm offenses are just a couple of examples. Many of these categories of offenses will have their greatest negative impact on noncitizens who have been lawfully admitted to the country, especially lawful permanent residents (LPRs). Unlike Aggravated Felonies, these categories of offenses will often, but not always preserve a lawful permanent resident’s eligibility for discretionary waivers of deportation.

With the varying degree of crimes and their applicable category, it is important to engage in competent counsel when faced with allegations of criminal misconduct. The attorneys at Uribe & Uribe APLC have decades of experience in defending hard-to-defend clients facing criminal charges in Superior Court and Immigration Removal Proceedings in Immigration Court.

PENAL CODE SECTION 1473.7

On January 1, 2017, California Penal Code section 1473.7 went into effect, providing people who are no longer in criminal custody with a legal vehicle to challenge old, unlawful convictions.

The Constitution Protects Everyone

The United States Supreme Court has held that a criminal defense attorney must protect the immigration rights and situation of an immigrant client. Padilla v. Kentucky (2010) The attorneys at Uribe & Uribe APLC understand the duty owed to immigrant defendants. In order to protect one’s immigration status it is imperative to engage in aggressive legal representation that understands how to protect and navigate both the criminal and immigration court process.

The United States criminal justice system is intended to protect law-abiding citizens but often time this can have unintended consequences that hurt the community. When a non-citizen is convicted of a crime exposing him or her to potential removal, Immigration, and Customs Enforcement, or ICE, will likely lodge a removal detainer against the immigrant. Usually, this detainer will remain in place until the sentence is complete, at which point the non-citizen will be released to ICE and taken to an immigration detention center.

Uribe & Uribe APLC is skilled in setting aside, vacating, or reducing criminal convictions so that our clients will not face deportation, removal, or exclusion from the United States.

The Post-Conviction Process

The Post-Conviction Process

Vacating a conviction can be a very difficult process since oftentimes a conviction is old and the records from the case have been lost or destroyed. As a result of this, we are left with no evidence to review to discover a possible argument to vacate the conviction. Put in other words, without a court file to review, it is difficult to prove that a prejudicial error occurred.

It is difficult because in order to vacate or erase a criminal conviction we must go back and change a judicial order that has been officially entered in the past. Often times a petitioner is charged with bringing forth a motion that alleges some sort of prejudicial error that occurred causing the non-citizen defendant to accept the negotiated plea.

The first step in the post-conviction process is to obtain the original court file of the conviction. In addition to this, other relevant documents must be obtained such as the Court Reporter Transcript of the Plea, applicable TAHL Waiver Form, applicable Court Minute Orders, defense counsel’s file (either from the Public Defender’s Office or from private defense counsel), and applicable evidence from the District Attorney’s Office.

INVESTIGATION OF HISTORY OF PLEA

Although obtaining all of the relevant documents can be trying, the attorneys at Uribe & Uribe APLC have developed strategies to successfully obtain most if not all of the required documentation for a complete and thorough investigation. Once all of the relevant documentation is obtained, an analysis of the evidence is done along with an analysis of current case law to determine what legal arguments can be used to attack the validity of the plea.

A NON-CITIZEN’S DISPROPORTIONATE IMPACT RESULTING FROM CONVICTION

The reality is that immigrants face a much more severe consequence as a result of being pushed through the State of California’s criminal justice system. As a result, the United States Supreme Court has found that non-citizen defendants in criminal court are owed a duty by their attorneys to have their immigration interests protected and their concerns about deportation addressed. Uribe & Uribe APLC has helped families remain intact as a result of aggressive legal representation to erase, set aside, vacate, or reduce a criminal conviction that could have been devastating to the client’s family.

Immigration Status and Criminal Convictions

Any non-citizen, regardless of immigration status, is subject to deportation or removal. It is therefore incumbent upon criminal defense counsel to perform a thorough intake and investigate a client’s immigration status. A simple question such as asking where a defendant was born can avert disaster for the non-citizen defendant. Although once armed with this information, defense counsel must act to navigate the adverse immigration consequences of the criminal conviction. Often times a non-citizen’s biggest concern is protecting his or her immigration status or maintaining his or her life in the United States. Competent defense counsel should not take for granted that just because a client speaks English “like any other American” he or she is a U.S. citizen nor should they assume that a client who does not speak English is a non-citizen. At Uribe & Uribe APLC we work to defend an accused’s innocence as well as his or her immigration rights. Often with a non-citizen defendant adverse immigration consequences are by far the gravest consequences that a non-citizen defendant can suffer as a result of a criminal conviction.

Now with the newly enacted Penal Code Section 1473.7, it can be argued in a post-conviction hearing that the prejudicial error that occurred was in the misunderstanding and failure to recognize the adverse consequences by the non-citizen defendant. If you would like to learn more about Penal Code Section 1473.7 please follow this link.

Felonies And Misdemeanors

If you are a non-citizen accused of a serious felony or misdemeanor it is important to immediately protect your rights and hire aggressive legal representation to assist you in navigating both the criminal justice and immigration court system so as to avoid adverse immigration consequences resulting from the criminal allegations. If you find yourself in this situation the stakes are raised even higher since a criminal conviction can maintain harsh immigration consequences such as deportation, denial of naturalization, and exclusion from admission to the United States. Knowledgeable legal counsel is necessary when confronting allegations in criminal court since immigration law is complex and there is a myriad of different types of crimes that can cause a non-citizen to suffer adverse immigration consequences.

Deportable Crimes

Whether a criminal conviction is a felony or misdemeanor typically does not matter to an immigration judge that is deciding whether to deport an immigrant convicted of a crime in California Superior Court. The most important factor that an immigration judge considers is whether the crime is a deportable offense under the Immigration and Nationality Act also known as the INA. The INA describes and categorizes convictions as either, crimes of moral turpitude, theft crimes, drug crimes, and gun crimes (to just name a few), and if an immigrant non-citizen has a qualifying crime he or she could then suffer immigration consequences such as deportation, denial of naturalization, and or exclusion from admission to the United States. When facing a criminal accusation it is important to navigate both the criminal and immigration process so as to avoid both penal and civil immigration consequences.

Avoid Immigration Consequences As A Result Of Old Criminal Convictions

There are four general categories of crimes that expose a non-citizen to removal.

Crimes Involving Moral Turpitude

  • Making false representations
  • Arson
  • Blackmail
  • Burglary
  • Embezzlement
  • Extortion
  • False pretenses
  • Forgery

Controlled Substance or Drug Crimes

  • Transportation of Drugs
  • Possession of Drugs
  • Sales of Illicit Drugs

Firearm Offenses

  • Brandishing a firearm
  • Possession of a firearm by a felon
  • Carrying a concealed firearm

Aggravated Felonies

  • Manslaughter
  • Murder
  • Robbery
  • Burglary
  • Possession for sale of a controlled substance
  • Attempt Charges

The Immigration Legal Resource Center provides an informational resource chart for legal professionals to reference when considering applicable immigration consequences of a criminal conviction.

MOTION TO VACATE A CONVICTION PER PENAL CODE SECTION 1016.5

A non-citizen accused of a crime in our criminal court system must protect his or her immigration interests before entering a plea to a criminal conviction. Unfortunately, a non-citizen defendant can come to discover that a conviction that he or she pled guilty to many years ago can come back to haunt them.

Immigrant Status And The Criminal Court Proceeding

Immigrant Status And The Criminal Court Proceeding

It is recommended that a non-citizen arrested and accused of a crime seek competent counsel that can advise on both the criminal and immigration aspect of the case. For instance, if you are arrested and accused of a crime and have no legal status it is very likely that once you are in police or sheriff custody an immigration hold will be placed on you. For this reason, it is recommended in most situations that a non-citizen defendant post bail. The reason for this is simply the less time you spend in custody the less likely a non-citizen defendant will come in contact with U.S. immigration officials. Once bail is posted then a notice to appear in court will be issued with a court date typically several weeks after the date of arrest. To learn more about the bond process for non-citizens please follow this link.

Once out of custody, it is important to engage in competent counsel that can navigate both the criminal and immigration systems. Once the case is filed by the local district attorney a defense attorney can then focus on attacking the charges and seeking an immigration-neutral plea. If you are a legal resident or a work permit holder then it is very likely that you will lose your work permit and legal resident status if you are convicted of the crime you are accused of. Importantly the criminal court process must play itself out before any sort of adverse immigration consequences will take hold. Because of this, it is important to make the right decisions with your immigration goals in mind.

FACING DEPORTATION BECAUSE OF CRIMINAL CONVICTION

Unfortunately, when a defendant is in front of a judge and facing consequences such as significant exposure in custody a non-citizen defendant does not consider the cost of how a criminal conviction on his or her record will affect their immigration case. Many different types of charges that are either felonies or misdemeanors in Superior Court will cause an immigrant defendant to be deported in Immigration Court. As a result of the complex nature of immigration law, various laws have been enacted to ensure that non-citizen immigrant defendants California Penal Code Section 1016.5 were enacted to protect the immigration interests of immigrant defendants. For instance, Penal Code Section 1016.5 allows for a defendant to fully investigate the consequences of a conviction so that he or she can fully understand how the plea offer they are accepting will affect their immigration status. More recently enacted Penal Code Section 1473.7 works to remedy a wrongful conviction that was entered erroneously by the non-citizen without a meaningful understanding of the long-lasting effects of the immigration consequences of a conviction.

IMMIGRATION CONSEQUENCES AND CRIMINAL CONVICTIONS

It takes a special skill set to understand how to defend immigrant defendants in state criminal court. The attorneys at Uribe & Uribe APLC understand how to defend immigrants and non-citizens accused of crimes. The reality is that non-citizens face a tougher time in criminal courts than citizens. Non-citizens face increased scrutiny through the Secure Communities program initiated by the United States Department of Homeland Security. As a result of this increased scrutiny non-citizens face deportation while a citizen would simply be cited as released.

IMMIGRANTS IN CRIMINAL COURTS FACE UNFAIR CONSEQUENCES THAT NON IMMIGRANTS DO NOT FACE

The consequences a non-citizen faces in criminal court have been found to be harsh when considering that just minor offenses that would typically lead to a slap on the wrist for most people can cause the life of a non-citizen to be turned upside down with removal from the United States. The unfortunate reality for a non-citizen defendant is that a conviction many years ago will cause grief in immigration court now harming not only the non-citizen but also his or her family and greater community.

The attorneys at Uribe & Uribe APLC take pride in addressing immigration law concerns in criminal prosecution as well as defending against deportation in Immigration Court. More specifically we take into account one’s own specific immigration situation when representing an immigrant in criminal and immigration court.

IMMIGRANT DEFENDANTS FACE A SPECIAL CONSEQUENCE

What can be harmless misdemeanor or citations for a citizen can create a life changing calamity for an immigrant that cannot return to his or her home country. Criminal convictions have serious and often tragic collateral consequences for non-citizens, namely deportation, removal from one’s home and denial of naturalization. This is especially true today because the government is ramping up immigration enforcement and aggressively searching for non-citizen inmates who are subject to deportation. The United States Department of Homeland Security works to deport immigrants with criminal convictions on their record no matter how old the criminal conviction.