Post Conviction Relief Motions and Your Record Clearance
Post-conviction relief (PCR) has become a corner stone of our defense practice. We are one of the few law firms in the SF Bay Area and California that are both immigration and criminal defense attorneys. We have been filing these Motions to Vacate in the various California Superior Courts, especially in the greater San Francisco Bay Area courts.
Because we have more than 50 years of experience defending our clients as immigration and criminal defense attorneys, we are able to review, analyze and defend our non-citizen clients without our clients having to hire another criminal defense lawyer or immigration defense attorney. This eliminates the necessity of you having to hire another lawyer that is not only costly but also creates other logistic and procedural problems, which compromises the effectiveness of your legal representation.
We file at least one or more of the following motions in representing our clients who have been convicted of crimes having adverse immigration consequences as part of our Post-Conviction Relief practice and Record Clearing affirmative defense practice.
If you have been convicted of any crime(s) or are being charged in the criminal court(s) with having committed any crime(s), then you will want to contact us. We file Post-Conviction Relief (PCR) and Record Clearance Motions, which include Motions to Vacate Criminal Convictions. These Motions are among the most important and effective ‘tools’ an experienced immigration and criminal defense attorney can use to defend his or her clients in the immigration courts and in cases before the Immigration Service (USCIS.)
We file these motions (see detailed list below) in the California state courts where the criminal convictions occurred. The grounds for filing these motions arise when our non-citizen clients have not been properly informed by the judge or by their criminal defense attorneys about the adverse immigration consequences of being convicted of the crime(s) you have pled guilty or no contest to.
Our PCR services can provide you with immigration relief in a variety of immigration related situations. In some cases, if your criminal conviction is vacated, then your immigration removal case can be terminated because there is no longer any legal basis to remove or deport you. Another equally important benefit of PCR and Record Clearance is that it makes our clients eligible to become lawful permanent residents and to naturalize and become U.S. citizens. Finally, PCR can enable you to qualify for the good moral character requirements in order to naturalize.
We are acknowledged immigration and criminal law experts. We bring over 50 years of experience successfully defending our clients and use all available means to win our clients’ cases.
Please find listed below a sampling of the various important Motions that we routinely prepare and file in order to win your cases so you are no longer deportable and so you can apply for and obtain your lawful permanent residency (‘Green Cards’) or naturalize and become U.S. citizens.
What are the Post Conviction Relief Motions we file?
1. Motions to Vacate pursuant to Penal Code section 1203.43:
You may believe that a previous drug conviction will not impact your immigration status if you pled guilty or no contest to a California drug related charge by means of a Deferred Entry of Judgment (“DEJ”). However, these DEJ plea deals still count as a conviction for immigration purposes. This misconception was and is shared by many criminal defense attorneys and even some judges who are unaware that a drug conviction dismissed via a DEJ is still a deportable drug conviction for immigration purposes. Thankfully, the State of California Legislature addressed this DEJ issue by enacting Penal Code sec. 1203.43, which will allow you to vacate those convictions.
Penal Code section 1203.43, newly enacted in January 2016 provides a procedure that will eliminate DEJ convictions for immigration purposes. These types of convictions are: Health and Safety Code sections 11350, 11357, 11364, 11365, 11377, and 11550. Once properly prepared and filed, a superior court judge will grant a P.C. sec. 1203.43 Motion withdrawing the defendants’ guilty or no contest plea and then dismissing our clients’ cases again, eliminating our clients’ conviction(s) on constitutional grounds.
Penal Code sec. 1203.43 thus eliminates the conviction for immigration purposes because the basis of the plea withdrawal is legal error: the finding that the DEJ Statute misadvised defendants, including all non-citizen defendants, as to the actual consequences of DEJ when it said that DEJ would not result in the loss of any legal immigration benefit, was not true. A DEJ did result in making a non-citizen removable (deportable and inadmissible). Therefore, once the P.C. sec. 1203.43 Motion is granted by the criminal court, the defendant's conviction becomes legally invalid and the immigration court case can be terminated because that conviction no longer exists. [See No.8 below for more details.]
2. Motions to Vacate pursuant to Penal Code section 1473.7:
If you were represented by a criminal defense attorney who failed to advise you of the adverse immigration consequences when you pled guilty and were sentenced, then you have a new form of relief available to you. Effective January 1, 2017, a new California law now help us erase for our clients the catastrophic consequences (immigration or ineligibility) that can attach to even very old convictions.
This new law now allows us to file a Motion to Vacate for all of our non-citizen clients even those who cases are over and are no longer in criminal custody. We can file based upon either one of two claims: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere (no contest), or (2) newly discovered evidence of actual innocence.
These Motions are extremely effective now providing our clients with new legal grounds to reopen their criminal cases and have them vacated and dismissed due to constitutional rights violations where our clients’ criminal defense attorneys did not warn them they would be deported if they pled to those crime(s). We have been bringing and winning these motions now throughout the courts in the San Francisco Bay Area.
3. Motions to Vacate pursuant to Penal Code section 1016.5:
If you are a non-citizen facing criminal charges, Penal Code section 1016.5(a) states that, prior to accepting a guilty or no contest plea in a criminal case, the court is required to read to you the following advisement: “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 has no record that you were advised of the deportation consequences of your plea, then it will be presumed that you were not advised. This means the prosecution has the burden to prove that you were advised.
Motions to Vacate Criminal Convictions pursuant to P.C. sec. 1016.5 are among the most important and effective ‘tools’ an experienced immigration and criminal defense attorney has to defend a foreign-born client in immigration court removal (deportation) proceedings. This Motion to Vacate is filed in the California state court where the criminal conviction occurred. The grounds for the filing of this motion, as set forth above, can be brought even many years after the non-citizen was sentenced. If the criminal conviction is vacated, then the underlying immigration removal proceeding can be terminated because there would no longer be a criminal conviction upon which the government could rely to deport that person. As a result of this motion being granted by the superior court judge, you can file a Motion to Terminate your deportation removal case. [See No. 8 below.]
4. Motions to Reduce Felony Convictions to Misdemeanors Penal Code section 17(b)(3):
If you can reduce your felony sentence to a misdemeanor, then in some instances, it will eliminate an aggravated felony conviction and open the door for defenses otherwise unavailable in the Immigration Court. These motions can eliminate the adverse consequences of some felony convictions for all purposes. If granted, winning a reduction motion can eliminate the need to report the conviction when applying for most jobs. When we file these Motions for our clients and they are granted by the California Superior Court Judges in the California criminal courts, we can also then file Motions to Terminate Removal Proceedings because you are no longer deportable from or inadmissible to the U.S. [See No 8 below.]
5. Motions to Modify Conviction(s):
We file these Motions for our non-citizen clients whenever their prior criminal conviction(s) are classified by the USCIS or the immigration courts as aggravated felonies. By modifying your sentence, for example, from one year to 364 days, we can change the classification from an aggravated felony to a simple felony which may not be enough to deport you or for USCIS to deny your visa application(s). These Motions to Modify Criminal Convictions are easier to obtain in the criminal courts than motions to vacate and can also eliminate your deportation and inadmissibility grounds, thus resulting in our being able to file a Motion to Terminate your removal proceeding being granted by the Immigration Judge.[See No. 8 below.]
6. Motions to Expunge Prior Convictions Penal Code section 1203.4:
These motions are important to citizens and non-citizens alike. Motions to Expunge criminal convictions can be granted only after successful completion of probation. When granted by the court, your conviction does not have to be disclosed when asked in employment applications: ..."Have you ever been convicted of any crimes?" You can answer "no" to this question. However, the conviction does remain on your criminal record and does not eliminate adverse immigration consequences. Nevertheless, these motions are effective in establishing the requirements of good moral character and rehabilitation for our clients who are petitioning for lawful permanent residency and applying for naturalization. We are filing for our clients P.C. sec. 1203.43 and P.C. sec. 1473.7 Motions to Vacate instead.
7. Motions to Destroy Records of Persons Factually Innocent Penal Code section 851.8:
These motions may be filed in any case where a person has been arrested and or prosecuted but where no conviction occurred. This motion requests the court to make a finding that the person is factually innocent of the charges for which he or she was arrested. If granted by the court, then any reference to the arrest record shall have the notation “Exonerated” and shall not be admissible as evidence in any action. In addition, destruction of all entries and notations pertaining to the arrest record shall be accomplished by permanent obliteration. “The record shall be prepared again so that it appears that the arrest never occurred.” If there are no other entries contained in that person’s criminal history record other than the arrest itself, then the entire record is physically destroyed from all computer-generated government and police records. Your arrest cannot be used against you for any purpose including immigration. This motion is particularly helpful for our non-citizen clients seeking to establish good moral character in the immigration courts as well as when applying for a visa, and for lawful permanent residency and for naturalization.
This motion is the only one that actually eliminates any and all criminal history records and computer-generated records that you were arrested or charged. Many of our clients ask us to file this motion in order to eliminate any record of their arrests for crimes that can cause problems for them with their families and employers.
8. Motions to Seal Arrest Records pursuant to P.C. sec. 851.9, et seq.:
A Motion to Seal filed pursuant to PC sec. 851.9, requests the superior court judge to seal your arrest record where there was no criminal conviction and it is in the furtherance of the interests of justice that it be granted. This is an effective Motion that eliminates some, but not all, of the adverse consequences of an arrest that is on your criminal history record. We file these motions for both our citizen and non-citizen clients alike with a high degree of success.
Once this Motion is granted by the court and your arrest has been sealed, your superior court and CA Department of Justice (DOJ) file will state: “ARREST SEALED: DO NOT RELEASE OUTSIDE OF THE CRIMINAL JUSTICE SECTOR.” This means that your arrest record is now private and protected. You may state, for example, to any future employer’s question that you were not arrested.
While this motion does provide some protection for some purposes, it does not provide protection against its disclosure by the DOJ and the superior courts for immigration purposes. You must also disclose it to DHS, USCIS and the immigration courts. Therefore, this motion is of limited value but can to demonstrate your rehabilitation and good moral character in some instances.
Importantly, we emphasize in our practice the filing of Memorandums of Law with your applications and petitions to USCIS that accompany our Forms in order to explain your legal eligibility for the immigration benefits you are seeking. This practice provides guidance and explanation to the Immigration Officers who review and adjudicate our clients’ adjustment and naturalization N-400 applications. This assures that the immigration officers understand that a motion to vacate has been granted by the criminal court. This practice results in nearly a 100% winning record for your applications and petitions being granting by USCIS and the immigration court judges. [See our Ratings and Reviews on our website and with AVVO.]
9. Motions to Terminate Immigration Removal Proceedings:
A Motion to Terminate asks an immigration court to “terminate” (i.e., dismiss) your immigration court case because the government’s underlying charges are defective. Although the government can sometimes amend their case after a Motion to Terminate is granted, there are many instances where the government will not be able to do so because its sole charge is legally deficient. This is particularly true when a Motion to Terminate is based upon the successful vacation of the underlying criminal conviction(s) in the criminal courts.
Motions to Terminate may also be particularly helpful for an individual who does not have strong defenses to deportation or removal because motions to terminate often deal with purely legal issues relating to the NTA. A Motion to Terminate can provide significant strategic advantages, particularly for immigrants with criminal convictions, and creates rare opportunities to hold the government to its burden of proof.
We first file Motions to Vacate our clients’ conviction(s) in the criminal courts. We then file Motions to Terminate (Dismiss) their Removal (Deportation) Proceedings in the Immigration Court. We then file for our clients’ Naturalization(s) with USCIS because they are no longer ineligible to apply.
Finally, we file Motions to Terminate as often as possible for our clients at the beginning of most Immigration Court Removal cases because they are a very effective defense that results in immediate closing (dismissal) of the removal (deportation) proceedings at the beginning of the case and also results in substantial savings for our clients who do not have to pay for additional legal services to be defended at an Individual Hearing (trial) in the Immigration Courts which can be very costly. See Ratings and Reviews on our Website for actual case examples.
Eckdish & Hall are or have been active members in the following organizations:
Avvo Lawyer Ratings (Avvo)
American Immigration Lawyers Association (A.I.L.A.)
Association of Trial Lawyers of America (A.T.L.A.)
California Attorneys for Criminal Justice (C.A.C.J.)
National Lawyers Guild (N.I.G.)