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.