New California Law Provides Key to Opening Locked Doors to Remaining in the U.S.

By Attorneys Ben Loveman & Nancy E. Miller

A significant recent change to California laws is providing new hope to persons formerly barred from immigration benefits. A new penal code section allows noncitizen-defendants to contest and potentially vacate a conviction at any time based on prejudicial error affecting the defendant’s right to understand and consider the immigration consequences before entering a guilty plea. Former law only allowed challenges while a person remained in custody and thus severely restricted the ability to bring such challenges especially since many people only learn of the severe immigration consequences of their conviction either directly after completing their sentence or many years after the fact.

Criminal convictions for even seemingly “minor” offenses can have major devastating consequences in the immigration realm. Convictions for common offenses like theft, drug possession or sale, shoplifting, or domestic violence can result in permanent bars to citizenship or green cards and can result in deportation.

An “aggravated felony” conviction (which may be neither aggravated or a felony under criminal law) subjects a person lawfully in the United States to removal and leaves little defense from removal. At first blush these consequences might seem fair enough. The person has been convicted of an “aggravated felony” after all and so must have committed a serious crime. Wrong. The INA defines aggravated felony to include minor offenses like the ones listed above. For instance, a person convicted of any type of theft offense who receives a one-year sentence (even if the sentence is suspended and the person never spends a day in jail) will be included in the definition of an aggravated felon. The same would be true for a person convicted of crimes of violence, including assault, assault regardless of the severity or circumstances of the assault if a one-year sentence is imposed.

Most immigrants and many criminal defense attorneys are unaware of the draconian consequences that follow these convictions. The result is that persons enter guilty pleas to these seemingly minor offenses (whether to avoid either exposure to more serious charges or the cost or time of fighting the charges, or both), receive what appears seems to be a good deal from criminal authorities but then tragically learn that they are forever barred from citizenship, face certain deportation or other harsh immigration consequences.

Former California law offered little recourse for persons in this situation to challenge the validity of their underlying criminal conviction. While many states have laws allowing such challenges, the legal framework of California’s system required that any such challenge be brought while the person was still in “custody’ of the state of California. The new law has no time limit and no requirement that the person still be in custody of the State at the time the motion is filed. The law provides that a motion to vacate a criminal conviction or sentence can be brought at any time on the grounds of “prejudicial error that damages the defendant’s ability to meaningfully understand the immigration consequences of the conviction or sentence, defend against them, or knowingly accept them.”

The ability to bring a motion challenging an old conviction even after service of the full sentence and completion of parole and/or probation is a huge development for persons suffering from harsh immigration consequences of convictions. However, simply making a perfunctory motion will not be enough to win such claims and vacate old convictions. Judges and prosecutors are likely to push back against overturning old convictions unless motions are carefully prepared and well-documented to meet all the requirements under the law.

Central to winning in this type of case will be presenting a clear case to the criminal court laying out the harsh consequences of the conviction, solid proof that the person would have not accepted the plea agreement had the harsh consequences been properly explained and understood, and that there would have been some other rational course of action for the defendant, like proceeding to trial or crafting some alternative reasonable plea agreement. Each of these elements must be carefully explored and then strongly supported in the motion to vacate a conviction.

The new law has opened a pathway to immigration benefits like permanent residency, naturalization, relief from removal, and possibly reopening of old removal and deportation orders to persons who were previously stuck. Determining whether you or a loved one might benefit from this new law will involve a detailed and careful analysis of the circumstances of each individual case. If you or a loved believes that this new law might apply you should contact an experienced and reputable immigration attorney as soon as possible to discuss your case.


What Happens When You Accept Voluntary Departure

By Reeves Miller Zhang & Diza

Aliens in removal proceedings are faced with the very real possibility of being deported from the United States. While in proceedings, the non-citizen may request various forms of relief that will allow them to remain here. Sometimes, the alien is not eligible for any relief that will let them stay. The alien may be asked, at that point, whether they wish to accept voluntary departure in order to avoid a deportation order. Many issues must be considered in order to make an informed decision in this matter.

The maximum amount of time that an immigration judge can give an alien to voluntarily depart the United States is 120 days. This amount is only available at the beginning of proceedings (with very few exceptions). In addition, the granting of that amount of time requires that the alien waive all rights to appeal. If the alien accepts this form of voluntary departure, s/he should be ready to leave the United States in no more than 119 days from the date of the order.

If the alien chooses to seek other relief in court and that relief is denied, the maximum amount of voluntary departure time the immigration judge can give is 60 days. The alien may pursue an appeal of the denial of the other relief and is entitled to remain in the United States during the pendency of that appeal. While the matter is on appeal before the Board of Immigration Appeals (BIA), the 60 day clock is stopped. However, it begins to run the day the BIA dismisses the appeal. At that point, if the alien elects to file a petition for review with the U.S. Court of Appeals, he must also file a motion to stay removal. However, the act of filing the petition for review vacates the voluntary departure grant and the alien then has a deportation order just as if he had never accepted voluntary departure in the first place.

If the alien fails to depart the United States during the period of voluntary departure, the order automatically becomes an order of removal (deportation). The judge does not need to issue any additional order. This is important for several reasons. An alien with a removal order is ineligible to apply for adjustment of status, change of status, suspension of deportation or cancellation of removal for five years for deportation cases or ten years under removal cases. Additionally, an alien who was granted voluntary departure and failed to leave during the requisite time is barred from relief for a period of ten years. These periods run concurrently (together).

If the alien acquires a new basis for a green card after the judge makes a decision on the case, the alien must file a motion to reopen the removal proceedings in order to apply for that relief. Filing such a motion vacates the voluntary departure grant. Therefore, if the motion is denied, the alien no longer has the ability to leave under voluntary departure.

If the alien leaves on his own after the period of voluntary departure has run, he is considered to have self-deported. He does not escape the negative consequences of failing to leave on time. He still incurs the ten year bar that a removal order carries. He may be able to obtain a waiver of that bar and return to the United States in less than ten years if he can show sufficient hardship. It is a difficult standard to meet.

Whether he leaves on time or after the expiration of the voluntary departure time period, he faces serious problems that will affect his ability to return to the United States. If he has been in unlawful status in the United States for a period of one year or more, once he leaves the United States, he incurs a ten year bar from returning. In order to apply for a waiver of that bar, he must show that his U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship if he were not permitted to return. Children are not qualifying relatives for purposes of this waiver. (If he has been in unlawful status for more than six months but less than one year and leaves under court-ordered voluntary departure, he does not incur the three year bar.)

The strengths and weaknesses of cases and the effect of pursuing or accepting various forms of relief are matters that should be discussed in depth with a knowledgeable and experienced immigration attorney before making a decision or taking any action. As in most things, knowledge is power.

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