Immigration Attorneys who are representing individuals with criminal convictions that are blocking progress toward citizenship may direct their clients to contact a criminal defense attorney to see about vacating (removing) the conviction so that the conviction is no longer a hindrance toward obtaining citizenship.
A criminal defense attorney can look to see whether there was a mistake made in the underlying case. For example, was the Defendant properly advised of the maximum punishment he was subject to? Was he properly advised of his trial rights? And finally, was he properly advised as to the immigration consequences?
Any one of these issues can lead to the conviction being vacated. An experienced criminal defense attorney should be able to examine the guilty plea forms and the advisement of rights and make a determination whether there is a flaw which may permit a successful motion to vacate the conviction or a withdraw of the guilty plea.
Even if the Defendant appears to have been properly advised as to his rights, an attack may be made on the advisement of immigration consequences. The United States Supreme Court held in Padilla v. Kentucky that even if the court does advise the Defendant that deportation is a possible consequence, that advisement is not necessarily sufficient. The Defendant must be properly advised by his criminal attorney at the time as to his particular potential immigration consequences.
The idea being that the Supreme Court does not think a boilerplate advisement of consequences is sufficient and that the Defendant is entitled to an informed discussion on whether his particular circumstances are such that with a guilty plea he will in fact be subject to deportation or other immigration consequences.
Penal Code Section 1016.5 specifically states what the immigration advisement must be for cases after 1978. It reads as follows:
If you are not a citizen, you are hereby advised that conviction of this 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.
Notably, some older cases do not contain this language in its entirety and as such the conviction may be overturned and the case dismissed. As mentioned above, even if this advisement is properly administered to the Defendant he may still challenge the conviction on the ground that the advisement was not sufficient because his lawyer at the time did not properly advise him on his particular immigration situation.
Criminal Law Updates by the Orange County Law Offices of William W. Bruzzo (714) 547-4636.