Staying in the U.S. as an Immigrant with a Criminal Conviction
The U.S. government is actively looking for immigrants with criminal pasts. Recently, the Department of Homeland Security’s Immigration and Customs Enforcement Bureau (ICE) conducted Operation Cross Check, a nationwide sweep of immigrants with criminal pasts. This is the sixth time that ICE has conducted the sweep since 2011. It resulted in the arrest of more than 2,000 immigrants from 94 different countries, all of whom are expected to be deported. The vast majority of these people were targeted because they have multiple convictions for driving under the influence or drug-related crimes. 1
If you are an immigrant legally living in the United States, you might not be aware of the additional risk involved if you are convicted of a criminal offense. If you plead guilty or no contest or are convicted of a crime, you could be targeted by ICE, and could find yourself deported.
Fortunately, a criminal defense attorney can help you clean your record so you can avoid this fate.
California Penal Code Section 1016.5
PC 1016.5 states that the court must advise a criminal defendant of the following before they enter a plea of guilty or nolo contendre (“no contest”):
“If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
If the court (meaning, either the judge or the prosecutor) failed to advise you that you could be subject to one of these adverse consequences, you may have grounds to file a motion under section 1016.5 to have your plea vacated.
To prevail on the motion, your attorney must show the following:
- You were not properly advised of the immigration consequences as provided by the statute;
- That there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; AND
- That you were prejudiced by the non-advisement.
The first two elements are fairly self-explanatory. You have to show that the court record shows that you were not advised of these consequences, and that, at the time you file the motion, you are in jeopardy of being deported, excluded from admission to the United States, or denied the right to undergo the process of becoming a naturalized citizen of this country. Also, for the advisement to be proper, California’s courts have ruled that the advisement must have been made immediately prior to your plea entry. 2
The third element is the most difficult to satisfy. To show prejudice, you have to show that had you been advised of the possibility of these immigration consequences prior to your plea, you would have made a different choice than pleading guilty or no contest. 3 You do not, however, have the burden of showing that you would have won your case at trial if you had chosen to plead not guilty. 4
Note, if you entered a plea of not guilty and were found guilty at trial, section 1016.5 does not apply to your case.
What If My Lawyer Failed to Tell Me That I Could Be Deported?
Many criminal defense attorneys only handle criminal law, and as a result, are not well versed in immigration law. Depending on the circumstances of your case, if you had a lawyer who advised you to plead guilty or no contest, and he or she did not tell you that a potential immigration problem could arise from your conviction, you may have grounds to file a writ of habeas corpus to have your conviction vacated on the grounds that you received ineffective assistance of counsel.
Your attorney may also be able to file a 1016.5 motion if you plead guilty or no contest and your previous lawyer failed to properly inform you of the immigration consequences of your guilty plea.
However, in order to have either of these be considered in your case, you must be in the custody of the state of California for the crime of which you were convicted or in probation or on parole. 5
Get Help Now
Before you start the process of cleaning your criminal record, your first move should be to hire an experienced criminal defense attorney who has a track record of helping people who face the potential disastrous consequences of deportation. If you are an immigrant with a criminal conviction, Wallin & Klarich can help. Your skilled attorney will help you navigate the complex legal process so that you can hopefully remain in the United States.
At Wallin & Klarich, our attorneys have over 40 years of experience fighting for the rights of criminal defendants, whether they are natural citizens or immigrants who came to this country seeking better opportunities for their families. We work tirelessly to give our clients the best possible chance at successfully remaining in the United States. Let us help you, too.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available near you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
1. [Dept. of Homeland Security, “2,059 Criminals Arrested In ICE Nationwide Operation,” March 9, 2015, available at https://www.dhs.gov/news/2015/03/09/2059-criminals-arrested-ice-nationwide-operation.]↩
2. [People v. Akhile (2008) 167 Cal.App.4th 558.]↩
3. [People v. Zamudio (2000) 23 Cal.4th 183, 192.]↩
4. [People v. Castro-Vasquez (2007) 56 Cal.Rptr.3d 406, 148 Cal.App.4th 1240.]↩
5. [See, People v. Villa (2009) 45 Cal.4th 1063, 1070; In re Azurin (2001) 87 Cal.App.4th 20, 23–27; Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1477.]↩
