What Is Post-Conviction Relief in Immigration?

If you are facing harsh immigration consequences because of an immigration conviction, there are a few methods you can use to get post-conviction relief for immigration purposes. The most common options are Penal Code Sections 1473.7, 1016.5, and 1203.43.

• Penal Code Section 1473.7: With Penal Code Section 1473.7, non-citizens can file a motion to vacate the conviction. This can be done on the grounds of newly discovered evidence proving their innocence or their lack of knowledge about the immigration impact of their plea or conviction. For instance, you could argue that you made a reasonable mistake in understanding the immigration consequences or that your counsel failed to inform you about the consequences.
• Penal Code Section 1016.5: Another way to motion for post-trial relief is through Penal Code Section 1016.5. Judges are required to advise you about the immigration consequences. If they failed to do so, you can file a motion to withdraw your plea under Penal Code Section 1016.5.
• Penal Code Section 1203.43: If you complete a Deferred Entry of Judgment (DEJ) program, Penal Code Section 1204.43 allows you to argue for vacating the plea entirely. Even if the plea is supposed to be dismissed after you finish the DEJ program, this isn’t the case for immigration purposes. Because of this, you can use this law to completely remove the plea from your record.

Under California law, you must exercise reasonable diligence in filing a motion for post-conviction relief through your crimmigration lawyer. This essentially means you must promptly file your motion after you realize the immigration consequences or explain why there was a delay.

During the process, you must also prove prejudice. This means you must be able to show that you were harmed by a lack of advisement or poor assistance from your counsel.

What Qualifies as a Conviction for Immigration Purposes?

Anyone who is convicted of a serious or violent offense can end up being detained by U.S. Immigration and Customs Enforcement (ICE). Additionally, it’s important to remember that you can be detained without a conviction as well. For example, if you admit guilt during a pre-plea diversion, ICE can use that admission to detain you.

Immigration law has its own definition of what is considered a criminal conviction. In essence, there has been a conviction for immigration purposes if either of the following two factors are true.

• There was a formal judgment of guilt.
• The adjudication of guilt has been withheld, but the judge, defendant, or jury has found them to be guilty. Similarly, being sentenced or penalized in any way could fit this second definition.

The good news is that pre-trial diversions aren’t considered convictions. Again, it’s important to avoid admitting guilt during the pre-trial diversion because any personal admittance of guilt is treated the same as a conviction for immigration purposes.

Get Help With Your Post-Conviction Relief Motion

If you believe that you may be eligible for post-conviction relief for immigration purposes, give our team a call. ICE takes a harsh approach to anyone who has pled guilty, which is why it’s so important to deal with these crimes as quickly as possible. Your attorney can walk you through the entire process and let you know what to expect, so you can be fully prepared. More importantly, we can help you avoid common pitfalls, such as admitting guilt, that may directly impact your immigration case.

To learn more about what to expect and get professional legal support, reach out to our crimmigration attorneys today.