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How to Challenge Criminal Conviction for Immigration Purposes


Immigration law has its own definition of what constitutes a criminal "conviction." A “conviction” for immigration purposes means a formal judgment of guilt entered by the court.

Expungement is Not an Option

A record of conviction that has been expunged does not remove the underlying conviction 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. See In re Roldan-Santoyo 22 I&N Dec. 512 (BIA 1999).

Post Conviction Relief Under California Penal Code Section 1473.7

Immigrants who plead guilty attempt to vacate their conviction through post conviction relief. In California, an individual can file a post conviction relief motion under California Penal Code section 1473.7. Under this penal code, an individual may challenge a conviction if they did not “meaningfully understand” that their conviction would pose immigration consequences. For example, imagine that you pled guilty to a drug possession conviction, but did not realize that it would later prevent you from become a lawful permanent resident. You may be able to set aside that conviction. When a conviction is vacated, it is as if that conviction never occurred.

A defendant may also challenge his conviction if his attorney failed to advise him the consequences of his guilty plea to his immigration status. (Padilla v. Kentucky, 559 U.S. 356 (2010).) As part of a person’s right to effective assistance of counsel under the Sixth Amendment, a lawyer has the obligation to advise a client that there may be immigration consequences, such as deportation, for pleading guilty to a particular criminal offense. To succeed in an ineffective assistance of counsel claim, a defendant must typically prove that but for their counsel’s actions, the outcome of the case would have been different.

Legal errors may result from improperly admitted evidence, incorrect jury instructions, or lack of sufficient evidence to support a guilty verdict. In California, a conviction may even be set aside if a defense attorney failed to consider immigration neutral dispositions.

A conviction may also be challenged if the defendant reasonably believes that the jury conducted itself improperly during deliberations or the trial itself. Jury misconduct is defined as any conduct that conflicts with the judge’s instructions as to how jurors should perform their duties. Jury misconduct includes alcohol abuse during deliberations or trial, improper communications between jurors and witnesses or counsel, speaking to people about the case who are not on the same jury, or refusing to deliberate.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. We will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.

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