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Know and Protect Your Rights in a Criminal Defense Matter



Download Our Free Guide

Know and Protect Your Rights in a Criminal Defense Matter





Oakland Post-Conviction Relief Lawyer

A criminal conviction is a serious matter no matter who the defendant is. However, immigrants to the United States who are not citizens can face even more disastrous consequences such as denial of admissibility, deportation, and exclusion from the United States. Convictions of certain crimes can begin the deportation process regardless of how long a person has been in the country or if they have a green card. However, the California state legislature passed a law that may allow for a reconsideration of a conviction that affects your immigration status.

An Oakland post-conviction relief lawyer could help you examine your options for post-conviction relief and pursue your case in court. A dedicated criminal attorney, they could work to gather the facts that led to the conviction, examine the law to determine the best path forward, determine if there is new evidence or prejudicial error, and represent your interests in court.

When a Convicted Defendant Might Seek Post-Conviction Relief

Judges and courts are dedicated to the idea of delivering fair punishments for convictions. However, whether a punishment is fair or not can be open to interpretation.

Many criminal charges in California are tried as felonies or misdemeanors according to a prosecutor’s discretion. Both misdemeanor and felony offenses can have a significant impact on a non-citizen’s immigration status. It is crucial that individuals who are not citizens of the United States are properly advised on the immigration consequences associated with a conviction of the crime they are charged with or any negotiated plea.

Convicted non-citizen defendants have the right to petition the court to vacate or modify their sentence if there was a prejudicial error or is new evidence pointing to innocence arises. Among other potential results, defendants can seek post-conviction relief to change a negative mark on their criminal record from a felony to a misdemeanor or other immigration safe crime. Especially in the case of older charges or simple drug charges or misdemeanors, there is even the possibility of a vacated conviction being dismissed altogether.

Changing a conviction to an immigration safe offense, reducing to a misdemeanor, or getting it dismissed altogether may allow individuals to avoid the stigma of being a convicted felon, deportation, and all the residual consequences that accompany it. A post-conviction relief lawyer in Oakland could help defendants determine if this is the right step for them.

The Effect of a Conviction on Non-Citizens

California criminal procedure requires that every non-citizen defendant be advised of the possibility of deportation upon conviction, especially when they are in the process of pleading guilty or no contest to a charge. Unfortunately, judges or counsel may fail to provide these advisements, leading to some immigrants unknowingly facing deportation after accepting a plea. This lack of advisement was occurring often and started coming to the forefront with the increase in removal and deportation proceedings.

In recognition of this issue the California state legislature passed California Penal Code §1473.7 which went in to effect in 2017. This statute states that a convicted defendant may file a motion to vacate their conviction if the defendant was not made aware of the potential immigration consequences of a guilty plea.  An Oakland post-conviction relief attorney can assist with the filing of the proper motion.

The statute continues on to state that individuals may file this motion as soon as they receive notice that immigration authorities are pursuing a deportation based on this conviction. It should be noted, though, that a successful motion would vacate the conviction but would not automatically result in the case being totally dropped. In short, the court would allow a defendant to change their plea and have their day in court while delaying any potential deportation. Depending on the position of the District Attorney, the matter may be tried through trial, renegotiated to an immigration safe offense, or dismissed altogether.

What an Oakland Post-Conviction Relief Attorney Could Do to Help

A conviction in court does not always mean that you must live with the consequences no matter what. In specific situations where you were not made aware of their rights or when changes in the law have made an old sentence unfair, you have the right to seek a change to that conviction. This can result in the court ordering a new plea of not guilty and ultimately, a renegotiated sentence that changes the crime type for the conviction or dismissal in some circumstances.

An Oakland post-conviction relief lawyer could help immigrants who are facing deportation after a conviction, or any other person seeking post-conviction relief. If you find yourself in either of these scenarios, call as soon as possible to set up a consultation and discuss your options.

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