How Can I “Clean My Record” For Immigration Purposes?
One common problem facing non-citizens seeking to obtain or maintain lawful permanent status is how to qualify for immigration benefits with a criminal record. Here, the consequences are drastic. Indeed, a single drug conviction can render an immigrant in unlawful status ineligible for most forms of immigration relief and a lawful permanent resident (“green card holder”) deportable – even if the conviction occurred years ago. The same is potentially true for criminal convictions involving theft, firearms, domestic violence, and any other crime involving moral turpitude. Furthermore, a criminal conviction can disqualify an individual in immigration custody from obtaining an immigration bond.
In such cases, individuals often seek to “clean” their criminal record for the purposes of qualifying for immigration benefits. This is known as “post-conviction relief.” Although California law (like most States) offers a variety of post-conviction mechanisms, not all are valid under federal immigration law. For example, expungements granted under state rehabilitative statutes generally are not recognized under immigration law.[1] Expungements under California law are a form of “rehabilitative relief” and are usually granted to individuals once they satisfy the terms of their probation. The state criminal court sets aside a jury verdict or allows the defendant to withdraw his or her guilty/no contest plea and the case is dismissed.[2] However, (aside from a few very narrow exceptions[3]), the expunged offense will remain a conviction for immigration purposes and the applicant for immigration benefits will continue to suffer the adverse consequences of the conviction, which often can mean deportation.
By contrast, a motion to vacate a criminal conviction that is granted based on constitutional grounds is generally recognized under immigration law. This will require a criminal defendant to demonstrate to the criminal court that his rights under the Constitution were violated during the course of his criminal proceedings. For example, the U.S. Supreme Court has held that a criminal defense attorney has a duty under the Sixth Amendment of the Constitution to advise defendants of the risk of deportation stemming from of a guilty or no contest plea.[4] Therefore, if the defendant can show that his defense attorney failed to provide adequate advice regarding the immigration consequences of his or her plea (or rendered constitutionally ineffective assistance of counsel for any other reason) and that as a result, the defendant was prejudiced, the criminal court should vacate the plea and sentence. In this scenario, the motion to vacate is valid under federal immigration law and the defendant should no longer have a conviction for immigration purposes.[5] Similarly, most states (California included) require the trial court, when taking a criminal defendant’s plea, to advise the defendant that such plea may result in deportation, exclusion from the U.S., or denial of citizenship.[6] If a criminal defendant can demonstrate that the criminal court failed to give the mandatory immigration warnings, the plea should be set aside and the sentence vacated. A conviction vacated on this basis is recognized under immigration law.[7]
As you can see, “cleaning” one’s criminal record for immigration purposes is a highly complex area of law that requires a sophisticated analysis of one’s criminal record and immigration history. Moreover, there are strict time limitations governing post conviction relief. Therefore, if you are facing adverse immigration consequences stemming from a criminal conviction, you should consult with an experienced attorney as soon as possible to explore your options for post conviction relief.
[1] See Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) (“State rehabilitative actions which do not vacate a conviction on the merits or on any ground related to the violation of a statutory or constitutional right in the underlying criminal proceeding are of no effect in determining whether an alien is considered convicted for immigration purposes.”).
[2] See California Penal Code §1203.4
[3] In cases arising within the jurisdiction of the Ninth Circuit (which covers California, Washington, Nevada, Arizona, Hawaii, Idaho, Montana, and Oregon) and in regards to convictions that occurred prior to July 14, 2011, an expunged first time conviction for simple possession of a controlled substance is valid for immigration purposes so long as the individual did not violate his or her probation. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). Similarly, an expunged conviction does not automatically disqualify an applicant for Deferred Action for Childhood Arrivals (“DACA”), though U.S. Citizenship and Immigration Services can still deny the application as a matter of discretion. See FAQs, Consideration for Deferred Action for Childhood Arrival Process (USCIS Website) at: http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions
[4] See Padilla V. Kentucky, 559 U.S. 356 (2010).
[5] See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006).
[6] See California Penal Code §1016.5.
[7] See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006).
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