crimes of moral turpitude - The Justice Firm

PC 1473.7 Motion To Vacate

The Justice Firm — Sun, 07 May 2023 21:55:57 GMT

Non-citizens, including lawful permanent residents, can experience profound immigration consequences for even minor or very old criminal convictions. Prior to 2017, California law only allowed defendants to challenge their conviction while they were in actual or constructive custody, i.e. parole or probation. As a result, countless people were left with no recourse and way of challenging their convictions. This gap has had a particularly devastating impact on the state’s immigrant community.

Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.

Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.

A PC 1473.7 motion to vacate can be filed on two grounds: (1) if a prejudicial error had occurred, which damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence, or (2) if evidence of actual innocence had been discovered. Notably, the prejudicial error ground for filing a successful motion to vacate does not require a finding of ineffective assistance of counsel. Moreover, in order to establish prejudice, the moving party does not have to prove that he or she would have obtained a more favorable result in the absence of the error.

PC 1473.7 includes a timing requirement that such motions be filed with “reasonable diligence” after receiving a notice to appear in immigration court, other notice from immigration authorities, or after a notice of final removal order, whichever is later.

All PC 1473.7 motions are entitled to a hearing, and if the moving party successfully establishes by a preponderance of the evidence that he or she is entitled to a relief, the motion will be granted, and the conviction will be vacated and erased from the person’s criminal record. However, that does not guarantee that the case will be dismissed. The case will only be dismissed, if the prosecution agrees to dismiss it. In the alternative, the prosecution may offer a different plea, and if not, the case will proceed to trial.

If an individual has a criminal record, obtaining a permanent legal status or citizenship is extremely difficult, if not impossible. At the Justice Firm we fight zealously to protect our clients’ rights and we believe that everyone is entitled to the opportunity to build a better future.

If you or a loved one is facing criminal charges, or needs assistance with a post-conviction relief, our highly skilled and compassionate attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

The Los Angeles District Attorney’s New Immigration Policy

The Justice Firm — Thu, 15 Dec 2022 21:01:47 GMT

A criminal conviction can have a life changing and potentially devastating impact on anyone. However, under federal law, certain offenses are considered deportable, including controlled substance offenses, crimes of moral turpitude, and aggravated felonies. So, for noncitizens, a criminal conviction brings with it potentially very grave collateral immigration consequences. In many instances, the individuals who are convicted of qualifying offenses, have spent their entire adulthood in the United States, have build their lives and have families here, and have no other place they would call home. Yet, following a criminal conviction, noncitizens face the threat of ending up in immigration court to face a potential removal and deportation to a strange country and permanent separation from their families.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

Second, in line with section 1016.3 of the California Penal Code, which requires that in all plea negotiations, the prosecution has to consider the avoidance of adverse immigration consequences as a factor in reaching a resolution, the new directive makes clear that “it is in the interest of justice to endeavor to avoid or mitigate immigration consequences of criminal convictions whenever possible.” Accordingly, the new directive lays out a comprehensive plan for plea bargaining, including:

Allowing for flexibility in sentencing, including splitting sentences across counts, as well as flexibility in sentencing for a probation violation; and
Avoiding sentence enhancements that would turn a neutral offense into an immigration damaging one.

Furthermore, the new directive lays out the Office’s policy on post-conviction relief. In 2016, the California legislature passed section 1473.7 of the California Penal Code, which created a vehicle for noncitizens, who are no longer in criminal custody, to seek post-conviction relief by allowing them to move to vacate prior convictions when there is a “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” In accordance with this, the new immigration policy directs prosecutors to concede without delay all motions to vacate, where it is clear from the record that a defendant was not able to comprehend, defend against, or knowingly accept the immigration consequences of a plea or a sentence.

Moreover, the new policy lists several type of cases in which it can be expected that a motion to vacate would not be opposed by prosecutors. These cases include:

Motions to bring a sentence down from 365 to 364 days;
Proposition 36 cases, where the defendant has completed the drug treatment diversion program;
Post-plea deferred entry of judgment cases;
Marijuana cases, which have been dismissed as part of the mass cannabis record clearance;
As well as cases where the defendant has been in the military and has been honorably discharged.

In general, the new policy makes clear, that regardless of the type of case, in all motions to vacate based on immigration consequences, prosecutors should consider all mitigating factors, including whether the defendant was a juvenile; how old the conviction is; the severity of the crime and the facts of the case; as well as the defendant’s character, including family history, work history, and contributions to the community. And, in cases where it is determined that a different resolution would have been reached, if the adverse immigration consequences had been raised initially, the prosecution should stipulate to a motion to vacate.

At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and we work hard for all of our clients to achieve the best outcome possible.

If you or a loved one is facing criminal charges, or is seeking post-conviction relief, or needs help with any criminal matter, our highly skilled and reliable attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

How Does A Criminal Conviction Impact Immigration Status?

The Justice Firm — Fri, 24 Jun 2022 20:37:22 GMT

If you are living in California on a visa, as a permanent resident, or you are undocumented, a criminal charge or conviction can have severe consequences on your immigration status. However, some crimes minimally impact immigration status. Suppose you have been charged with a crime in California. In that case, it is essential to speak with a qualified immigration attorney who can explain how your immigration status will be impacted if you are convicted.

The Importance Of Hiring A Criminal And Immigration Law Attorney

Your California criminal conviction can directly impact whether you are deported and whether you can return to the United States in the future. Hiring an attorney with a strong understanding of federal and state criminal and immigration laws can significantly improve the outcome of your particular situation.

If you know you are at risk of criminal charges, please contact The Justice Firm locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or visit us on our website. Our immigration and criminal law attorneys are prepared to represent you using negotiation skills and preparing for trials. Our attorneys know the laws, and we are dedicated to advocating for your best interests so you can make the best decisions for your future.

Crimes That Can Lead To Deportation

When foreign visitors travel to the United States, the threat of deportation often looms in the background. Federal law has a lengthy list of crimes that, if an immigrant is convicted, must result in deportation. Immigrants can also be deported for other listed crimes, but courts have more discretion to decide whether deportation is part of the punishment of the conviction.

State-level and federal-level crimes can result in deportation, making it easier for the government to deport immigrants for low-level and more severe convictions. The crimes discussed below are not a complete list of crimes that can impact immigration status.

Crimes Of Moral Turpitude

Federal law states that immigrants shall be deported if convicted of “crimes of moral turpitude” (“CMT”). Unfortunately, the law does not define a CMT. Although courts can review criminal convictions on a case-by-case basis, CMTs are often described as morally depraved, vile, or severe acts. These types of crimes typically include:

Physically violent crimes, including murder, manslaughter, battery, and assault;
Sexual violence, including rape and sexual assault;
Kidnapping;
Human trafficking;
Specific theft crimes; and
Specific drug crimes.

If the crime was committed within five years of being admitted into the country, courts are more likely to find the crime a deportable offense. The courts are likely to consider these crimes as deportable offenses for permanent residents if the crime occurred within ten years of being admitted into the United States.

Finally, deportation for CMTs can result only if the possible prison sentence is at least a year or longer. This does not mean that the court’s actual sentence lasts a year or longer. It means that the sentence, under law, has the potential to last a year or longer.

Multiple Criminal Convictions For CMTs

Even if a CMT was committed five years after entering the United States or within ten years of becoming a permanent resident, courts could still deport immigrants who committed two or more CMTs. However, the CMTs must have occurred separately. Specifically, the CMTs cannot have happened from the same events of criminal activity. Unlike CMTs committed within the five or ten-year timeframe, courts may not necessarily deport the person convicted of the crimes.

Other Crimes Where Convictions Could Result In Deportation

California courts can decide whether to deport immigrants convicted of the following crimes:

Aggravated felonies;
High speed chases from immigration checkpoints; and
Failure to register as a sex offender.

Aggravated Felonies

Immigrants convicted of aggravated felonies can be deported regardless of when the crime was committed in the United States. Aggravated felonies can include crimes defined as aggravated felonies under federal or California law. Many of these crimes are similar to CMT crimes, but they can consist of additional crimes such as gun or drug trafficking, tax evasion, fraud, and passport counterfeiting.

Aggravated felonies can also include regular felonies that have aggravating factors, including:

No showing of remorse for victims;
Amount of harm to victims; and
Committing a crime when a child is present.

These factors allow what would otherwise be relatively low-level crimes, such as drug possession, to become deportable crimes. Because many felony convictions, even nonviolent convictions, can lead to deportation. Any person with immigrant status should contact a skilled criminal and immigration attorney who can advocate for their interests. If you have been charged or convicted of a felony or a crime determined to be a Crime of Moral Turpitude, don’t hesitate to get in touch with The Justice Firm locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or visit us at our website.

High Speed Chases At Immigration Checkpoints

Criminal convictions for using a vehicle to avoid or flee a federal or state officer at an immigration checkpoint can also result in deportation. This particular crime often occurs when an immigrant entering the United States quickly drives away at the checkpoint or tries to avoid the checkpoint altogether. However, federal law defines “high speed” as any speed above the legal speed limit. If you face this criminal charge and believe that your speed was reasonable, the law is not forgiving when federal or state officers claim that you fled or avoided the immigration checkpoint.

Drug Crimes

Unfortunately, drug convictions are often why immigrants are deported, even if the crime did not result in physical harm to any other person. Under federal law, deportation is possible regardless of when the crime occurred, and the rule applies to all controlled substances. Drug convictions can even include conspiracy and an attempt to commit a crime. If you face a possible drug conviction, you can be deported even if you have never come into contact with drugs.

Possession of marijuana is particularly damaging and unfair to immigrants. Possessing marijuana under California state law is legal, but possessing marijuana remains illegal under federal law. This means that, even if you are in California and possess marijuana, the federal government still has the authority to prosecute you for drug possession. This can be confusing and unfair to immigrants who may not understand the laws. Ultimately, the court has the authority to determine whether possession of marijuana results in deportation.

Federal law makes an exception for a single offense of marijuana possession if there are 30 grams or less and the marijuana is for personal use.

Domestic Violence, Stalking, And Crimes Against Children

Drug convictions, domestic violence, stalking, and crimes against children are often reasons immigrants are deported. Domestic violence crimes are broadly defined and can often include misdemeanor-level offenses. These incidences typically involve a spouse, current or former partners who live or have lived in the same home, or individuals who share a child. Even if the conviction resulted from one situation where both you and the other person involved made poor choices, the law allows for a single domestic violence conviction to lead to deportation.

Domestic violence crimes can also include violations of a protective order. If you have a protective order against you, contacting that person can result in a charge and conviction. This is true even if the other person contacted you first. Because domestic violence situations are particularly prone to charges and convictions, it is essential to have a qualified attorney who can advocate on your behalf.

Crimes against children typically include child abuse, neglect, abandonment, and even crimes committed in the presence of children.

Impact Of Deportation On Residency, Visas, And Re-Entering The United States

Deportation, regardless of the criminal conviction, usually results in losing residency and having a visa revoked. If convictions are for crimes of moral turpitude, the immigrant convicted is often permanently banned from re-entering the United States. For lesser crimes resulting in deportation, the government will usually place a temporary ban on immigrants’ ability to re-enter the United States.

Hiring A California Immigration Attorney

You do not need to face criminal charges and the risk of deportation alone. We strongly encourage you to contact The Justice Firm locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714 or visit us on our website. Our immigration attorneys are ready to review the facts of your case and advocate for you to remain in California. We serve clients in Los Angeles, Riverside, Orange, Ventura, and San Bernadino counties.

Learn more about immigration law.