Post Conviction Relief

If you are a non-citizen in removal proceedings and have been convicted of a crime, it is extremely important that you consider post-conviction relief to help alleviate many of the severe immigration consequences you are facing. Oftentimes, one of the best ways to avoid being deported is to get post-conviction relief. This is accomplished by going to the criminal court in order to eliminate the conviction that triggered the removal proceedings.

Essentially, post-conviction relief involves changing the outcome of a criminal case after you have pled guilty/no contest. This can happen by vacating, reducing, expunging, or modifying in some way your plea, sentence, or record of conviction. Even if your conviction does not bring about deportation it is in your favor to seek post-conviction relief since many forms of relief in immigration court are discretionary, and as such, having a clean criminal record can increase your chances of avoiding deportation.

But remember, getting post-conviction relief is not guaranteed and not always easy to do. That is why it is crucial to your case to have an experienced attorney like Andres Bustamante on your side to help get post-conviction relief.

For non-citizens, particular criminal convictions can lead to being deported or other serious immigration consequences. However, it is possible to request that the court vacate or modify your conviction, which will allow you to remain in the country.

In order to get a conviction modified or vacated, you need to show that there was some legal or procedural error during your criminal case. More often than not, this arises if you were convicted or pled guilty because of ineffective assistance of counsel or were not adequately informed of the potential immigration consequences of taking a plea by the court.

There are several ways to go about modifying or vacating your conviction, and the best option for you depends on the facts of your case.

Some examples include:

• Motion to Vacate under PC §1016.5
• Motion to Withdraw Plea under PC §1018
• Writ of Habeas Corpus for ineffective assistance of counsel
• Writ of Coram Nobis
• Dismissal under PC §1385

The Law Offices of Andres Bustamante are here to help you modify or vacate a criminal conviction and avoid the harsh immigration consequences these convictions carry.

Being convicted of a felony carries with it some of the harshest penalties, including immigration consequences. The value of reducing a felony to a misdemeanor is that many times it can help you avoid the adverse immigration consequences of a felony conviction, because a reduction may eliminate an element of the offense that would otherwise lead to the state offense being an “aggravated felony” for federal purposes.

Under California Penal Code §17(b), certain felony convictions can be reduced to misdemeanors. In order to reduce your felony to a misdemeanor, you must meet the following three requirements:

  1. The felony conviction must be what is known as a “wobbler,” meaning it is an offense that can be charged and punished as either a felony or a misdemeanor;
  2. You must have been given probation, and not sent to state prison. If you served any time in state prison you are not eligible to reduce your felony. County jail is not state prison; and
  3. If you were convicted of any other felonies in the same case, then all felonies must be eligible for reduction or none of them are.

An example of some, but not all, “wobbler” offenses include the following:

  • Burglary (PC §459)
  • Assault with a Deadly Weapon (PC §245(a)(1))
  • Criminal Threats (PC §422)
  • Spousal Battery (PC §273.5)
  • Theft Offenses (PC §487(a))
  • Battery (PC §243(d))
  • Sexual Battery by Restraint (PC §243.4(a))
  • Forging a Driver’s License/Identification Card (PC §470(a))

Vacating or modifying a sentence is effective for immigration purposes. Certain crimes that carry a sentence of a year or more are considered crimes of violence and have devastating immigration consequences as aggravated felonies.

If you were granted deferred entry of judgment (DEJ) under PC 1000, PC 1203.43 allows you to withdraw your plea in order to avoid the unintended consequences of DEJ. It works by erasing a prior DEJ as a drug “conviction” for immigration purposes.

Without withdrawing the plea under PC 1203.43, DEJ can remain a “conviction” for immigration purposes, even if a court dismissed charges based on person’s successful completion of DEJ program.

Expungement

PC § 1203.4 provides that the court may grant an expungement of convictions in the interests of justice when the applicant was placed on probation and can show that no new criminal charges are pending, the defendant is not on probation, and is not serving a sentence for any new charge.

Deferred Entry of Judgement (PC 1000)

California’s deferred entry of judgment (DEJ) program allows most nonviolent first-time drug offenders to obtain treatment and education instead of jail time. Following successful completion of drug diversion, the charges are dismissed leaving no criminal record.

To be eligible for PC 1000, the original charge must be for simple possession (personal use) only. If you have been charged with sale or possession for sale, you are not eligible for drug diversion under PC 1000.

Prop 36

Requires that eligible non-violent drug offenders serve their time in a drug treatment program instead of in jail or prison.