DEFENSE COUNSEL MUST PROTECT A NON-CITIZEN DEFENDANT’S IMMIGRATION INTERESTS
The California Legislature has found that noncitizen defendants face a certain type of consequence related to their immigration status that other defendants do not suffer. This consequence can be a denial of an immigration benefit such as a U-VISA, naturalization, or even lead to removal from the United States even if you are a lawful citizen. Since noncitizen defendants face these consequences that others do not face, it has been recognized in precedential decisions such as Padilla v. Kentucky (2010) that attorneys owe their non-citizen clients a duty to defend and protect their immigration status. The Courts as well as our California Legislature have acted to protect these rights in the form of statutes. Take for instance the California Legislature’s findings in Penal Code section 1016.2. The language of the Statute is below.
Penal Code Section 1016.2
Clearly, in the codification of this case law, the California Legislature’s intent was to provide legal protections for non-citizen defendants that may suffer the above-mentioned adverse immigration consequences.
Padilla V. Kentucky (2010)
In Padilla v. Kentucky (2010) the United States Supreme Court ruled that an immigrant defendant receives ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution if his or her criminal defense attorney fails to protect, investigate, or advise about the actual and specific immigration consequences of petitioner’s plea. A criminal defense attorney must advise of the specific, actual, and easily verifiable immigration consequences of your decision to plead guilty. The United States Supreme Court in Padilla found that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advise for noncitizens accused of crimes has never been more important.
Vacating a Conviction As A Result of Constitutional Defect
While expunging a criminal conviction from your record might help for work or for school purposes in the State of California. An expungement will not delete the consequences of a criminal conviction that will cause an immigrant defendant to become deported, excluded from admission to the United States, or denied naturalization. In order to avoid deportation, exclusion from admission to the United States, or denial of Naturalization an immigrant defendant must have a criminal conviction vacated to avoid adverse consequences stemming from that conviction. Dependent on what legal vehicle or motion was used to vacate the conviction it must be shown that the defendant suffered prejudice as a result of the error. In order to determine if you qualify for the legal remedy of post-conviction relief it is important to consult with one of the qualified attorneys at Uribe & Uribe APLC.
Vacating A Criminal Conviction To Avoid Adverse Immigration Consequences
Vacating a plea to avoid immigration consequences will erase the adverse criminal conviction from the immigrant defendant’s record. Vacating a conviction is not easy since it is essentially asking the court to go back and erase a conviction that has already been placed on a defendant’s record. This process is akin to going back in time and withdrawing your guilty plea. Vacating a conviction can also be a very complicated process. In order to be successful in this process it is important to consider all of the relevant evidence associated with the offending plea including the court file, the court reporter’s transcript of the plea (if available), the prior attorney’s file, and any documentary evidence you may have from the plea. No matter how old the case is this evidence can lead to your post-conviction team to a post-conviction remedy. For these reasons, it is important to engage in post-conviction counsel that maintains an appropriate amount of experience to navigate through the court process.
A Non-Citizen Defendant Must Be Advised Of Adverse Immigration Consequences
A Court Record Must Show That an Immigrant Defendant Was Advised of His Or Her Specific Immigration Situation
The California Supreme Court established long ago that it is not too great a burden on the trial judges or clerks under their direction to require minute or docket entries specifically listing the rights of which a defendant is actually advised. This rule was established in the decision of In re Smiley (1967). The Court noted further that minute or docket entries must be prepared for the particular case before the court and the requirement that courts specifically list the rights of which a defendant is actually advised is not satisfied by the use of minute forms containing printed recitals of this advice. Accordingly, it is important that before a non-citizen defendant attempts to vacate a conviction he or she begins the process with a thorough investigation to determine exactly which post-conviction vehicle will better serve the post-conviction goals.
A Defendant Must Understand the Nature of the Plea
The Court has repeatedly noted and condemned the use of inappropriate, inflexible, or outdated printed forms. People v. Succop (1966) This rule was established since it was recognized by the courts that the use of inappropriate, inflexible, or outdated printed forms often “signed” with a rubber stamp infects the whole record. In re Raner (1963), The deficiencies are caused by pre-printed forms or rubber stamps. Nelson v. Justice Court (1978) has been alleviated in many California Courts by the use of “TAHL Waiver Forms.” Worsley v. Municipal Court (1981). These TAHL forms clearly designate a defendant’s Constitutional rights and require the defendant to acknowledge the waiver of those rights by initialing them. Clearly, the rule established here requires that a noncitizen defendant that enters a plea must do so knowingly and have a complete understanding of all of the potential immigration consequences. When considering the state of current statutory law in California it is important to understand that California Penal Code Sections 1016.2 and 1473.7 respectively work to codify some of the past judicial decisions that have been interpreted to protect the immigration interests of noncitizen defendants.
Mere Recitation of Immigration Advisement is Insufficient
When considering a motion under California Penal Code 1016.5 it is important to consider if the noncitizen defendant was advised In the case of Dubon the court found that a mere minute order recitation of immigrant advisement in a preprinted form stating that an immigrant defendant received ALIEN/CITIZENSHIP advisements was an insufficient record for the purposes of Penal Code Section 1016.5. Here the court went on to declare that a minute entry is only useful and compelling evidence to prove specific advice if it is handwritten as the advisements are given. A preprinted minute order provides no insight into the exact advisement that the court gave. The reality is that a waiver must be provided to the immigrant defendant so that he or she can knowingly waive the adverse immigration consequences that would befall him or her. It is important for the immigrant defendant or noncitizen defendant to have a complete understanding of all of the potential adverse immigration consequences.
An Immigrant Defendant Must Be Advised of Relevant Immigration Consequences as a Result of the Plea
When considering a motion under California Penal Code 1016.5 it is important to consider if the non citizen defendant was advised In the case of Dubon the court found that a mere minute order recitation of an immigrant advisement in a preprinted form stating that an immigrant defendant received ALIEN/CITIZENSHIP advisements was insufficient record for the purposes of Penal Code Section 1016.5. Here the court went on to declare that a minute entry is only useful and compelling evidence to prove specific advice if it is handwritten as the advisements are given. A preprinted minute order provides no insight into the exact advisement that the court gave. The reality is that a waiver must be provided to the immigrant defendant so that he or she can knowingly waive the adverse immigration consequences that would befall him or her. It is important for the immigrant defendant or non citizen defendant to have a complete understanding of all of the potentially adverse immigration consequences.