Post-Conviction Relief for Immigrants with Criminal Records

By Attorneys R. Eric Welsh & Nancy E. Miller

All criminal convictions have consequences, but when an immigrant is convicted of a crime, the consequences can be much worse than fines, probation, and imprisonment.  An alien (even a permanent resident) convicted of a crime can be detained and deported without eligibility for relief, forcibly separated from their family and their lives in the United States.  Not every conviction triggers deportation, and some crime-based bars can be waived.  However, when a conviction would cause deportation or inadmissibility and the bar cannot be waived, the best option to remain lawfully in the U.S. may be through post-conviction relief.

In California, there are several options available to avoid or mitigate the calamitous immigration consequences of a conviction.  Some of those options are available before the conviction is ever entered.  Governor Brown recently signed into law a bill (AB 208) that will allow a person charged with a simple drug possession offense to accept “pre-trial diversion” without pleading guilty, and go to drug counseling instead of jail.  If the person successfully completes the counseling and rehabilitation, the charges are dismissed, and there is no conviction for immigration purposes.

Another law that went into effect last year provides a way for an immigrant who accepted a Deferred Entry of Judgment (DEJ) to eradicate the “conviction” for immigration purposes.  Before the new pre-trial diversion became an option, California courts allowed a person charged with a drug crime to plead guilty and accept DEJ, a sort of probation that, if successfully completed, results in dismissal of the charge.  However, under federal immigration law, the person still has a “controlled substance conviction,” even if California recognizes the dismissal.  Cal. Penal Code 1203.43 was enacted because legislators realized that the DEJ statute provided misinformation about making a plea, leading a reasonable immigrant to believe that DEJ would lead to no adverse immigration consequences.  By making a motion under section 1203.43, an immigrant can have the plea withdrawn as legally invalid and therefore no longer a “conviction” for immigration purposes.

Other laws exist to correct or modify a conviction.  Modification can be extremely important because many criminal bars and grounds of removal in  immigration law require a conviction of a felony, which is generally defined as a conviction for a crime that carries a possible sentence of more than one year imprisonment.  In California, all misdemeanor convictions carry a maximum possible sentence of 364 days, and many crimes can be either misdemeanors or felonies.  California provides two mechanisms to change a felony into a misdemeanor: “reclassification” under Prop 47, and “reduction” under Penal Code 17(b).

Prop 47 formally reclassifies six specified nonviolent offenses from felonies to misdemeanors, and allows a person who was convicted of a felony prior to the enactment of Prop 47 to have their conviction retroactively reclassified.  Penal Code 17(b) allows a person to designate a “wobbler” crime as a misdemeanor.  A “wobbler” is a California crime that can be punished either as a felony or a misdemeanor.  Unlike Prop 47, this relief is discretionary, meaning that the individual must convince the court that he or she deserves relief or that there is a compelling reason for the court to grant the reduction.

California also provides ways for a person to set aside and dismiss (or “expunge”) a conviction.  In general, a “rehabilitative” expungement (i.e., an expungement granted on showing successful completion of probation and other requirements) is NOT recognized for immigration purposes.  Even when the state recognizes that a conviction is expunged and erased for purposes of employment, housing, and loans, the federal immigration authorities may still treat the individual as a person convicted of a specified offense.

While a rehabilitative expungement may not help an immigrant avoid adverse immigration consequences, a conviction that is vacated as legally invalid will not be considered a “conviction.”  Last year, California enacted Penal Code 1473.7 to allow a person who was convicted and already served a sentence to petition the court to vacate a legally invalid conviction.  This may be based on newly discovered evidence of actual innocence (e.g., DNA evidence), or, for immigrants, a showing of prejudicial error that affected the immigrant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea (e.g., a defense counsel failed to accurately advise the defendant about specific immigration consequences of a plea, and failed to plea bargain for a “safe” alternative disposition).

Every state has some form of post-conviction relief, and an immigrant with a criminal conviction should consult with an attorney versed in both immigration and criminal law to discuss options to eradicate the devastating consequences.  Immigrants with criminal records are especially vulnerable in this political climate, and every option should be explored to protect the immigrant and keep families together.