Author Archives: Henry Pham

Should you wait to withdraw a criminal plea that caused immigration consequences?

The office frequently gets asked if it is too soon for a defendant to attempt to withdraw or vacate a criminal plea that has caused immigration consequences, such as deportation, removal or denial of naturalization. For example, some defendants have stated being told that a period of 10 years needed to pass before a criminal plea could be withdrawn or vacated. The correct answer, as is often the case, is to seek the advice of an attorney as soon as you have learned or believe that a past criminal plea has caused a negative immigration consequence. Waiting may be detrimental to your chances of having the plea withdrawn or vacated.

As an example, courts have held that a defendant who wants to withdraw a plea because of ineffective assistance of counsel (the defendant’s attorney failing to advise her of the immigration consequences of her plea for example) must do so while they are still serving their criminal sentence for that plea, either still in custody or on parole. So if a defendant waits until after he has finished his sentenced and has been released, the defendant risks losing the ability to withdraw or vacate the plea on the basis of ineffective assistance of counsel.

As another example, California Penal Code section 1018 may allow a defendant to withdraw his or her guilty plea “for good cause shown”. However, the defendant must do so before judgment is entered or within six months after the defendant is placed on probation. Again, waiting too long may result in the loss of section 1018 as a vehicle to withdraw the plea.

In conclusion, a defendant should seek the advice of an attorney as soon as he or she believes that guilty plea has caused a negative immigration consequence and needs to be withdrawn.

Retaliation for Whistleblowing for Government Contractors

Retaliation for whistleblowing for government contractors received expanded protection effective in 2013.  Employees of government contractors who act to ensure a government contractor fulfills its obligations are protected from retaliation by their employers.  Government Code section 12653(a) reads:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of his or her employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this section or other efforts to stop one or more violations of this article.

This means that employers who are government contractors should take care to deal with employees who complain about issues Even if an employee did not report or threaten to report a failure of the contractor to fulfill its government actions, the revision to the law makes any “efforts to stop one ore more violations of this article” protected from retaliation.  Therefore, if you were retaliated against for even complaining that the contractor’s work did not meet the government’s requirements, you may be able to bring a claim for retaliation under this code section.  The relief for the claim includes double the amount of back pay, interest on the back pay, special damages such as emotional harm, reinstatement  and, where appropriate, punitive damages.  If you believe you have a claim, we encourage you to speak to an employment law attorney as soon as possible.  Many attorneys, such as this office, will provide an initial consultation free of charge to help you understand and preserve your legal rights.

Our office, always endeavoring  to represent our clients vigorously, recently filed a lawsuit on behalf of a client against a government contractor who served Medicaid providers and members.  The client complained to her employer about Medicaid providers and members not receiving the attention she believed they required.  If you believe you have a similar claim in Orange County or Los Angeles, please call us for a free initial consultation.

Post Conviction Relief (for non-citizens) – Vacating a Conviction in California

There are many reasons for seeking post conviction relief, or attempting to vacate a conviction, in California.  Certain criminal convictions, such as for domestic violence or for drug related offenses, can result in deportation or denial of immigration benefits to a non-citizen of the United States.  Vacating the criminal conviction, which includes withdrawing the plea and vacating the judgment, can reverse that.  Therefore, if you face removal, deportation or denial of naturalization because of a criminal conviction, speak to an attorney with knowledge of these legal issues to determine whether vacating the conviction in California is an option for you.

There are many grounds for invalidating or vacating a conviction in California.  Most convictions follow a guilty plea.  California requires that the judge advise you of the immigration consequences of a guilty plea during sentencing.  Courts have vacated convictions because the court did not provide the advisement of those consequences.  Courts have vacated a conviction because the defendant’s own attorney did not advise the defendant of the immigration consequences or failed to identify and negotiate a plea without adverse immigration consequences.  Another ground may be a guilty plea made in reliance on false promises made to the defendant by a police officer or prosecutor. Therefore, if you believe that there may be grounds to vacate your criminal conviction, speak to an attorney with knowledge of these legal issues as soon as possible.  If you or your attorney present a compelling reason, the prosecutor and judge may agree to vacate the conviction, resulting in the reversal of the denial of immigration benefits.

Suffering from a hostile work environment or harassment?

Suffering from a hostile work environment or harassment at work?  Under both federal and California, it is generally illegal for an employer to allow an employee to be harassed because of his or her gender, sexual orientation, pregnancy, disability, age or other protected category.  If you believe you are being illegally harassed at work, you should seek legal advice as soon as possible.  Law offices, such as this one, often will provide some consultation without charge.  The policy of anti-harassment laws are to encourage employers to create a work environment free of illegal harassment.  Likewise, the policy encourages the employee to notify the employer, such as a supervisor or human resources personnel, to allow the employer to correct any issues.  But the situation often gets complicated due to the nature of the work environment.  Employees fear retaliation if he or she complain.  Therefore, it is a good idea to get legal advice about the issue to determine how to protect yourself physically, mentally and legally.

Employees often believe that it is illegal for an employee to treat him unfairly.  However, in California, employment is typically at will.  At will employment means that the employer may terminate the employee for whatever reason and, likewise, the employee may quit the employment at any time if they do not want to continue.  The law does, however, protect an employee from discrimination or harassment because of a protected category such as race, gender, pregnancy, disability, sexual orientation or age.  To determine whether you are being illegally harassed, you should seek a consultation with an employment attorney.

Disability Discrimination

Are you the victim of disability discrimination?  In California, an employee with a disability has the right to work free of discrimination and to have her disability accommodated.  The law encourages employers to accommodate disabled employees if it is reasonably possible.  An accommodation may be time off from work to recover.  It may be a work modification such as not standing for long periods.  It may be finding another available position in the company.  Both employers and employees have responsibilities to work with each other to find a reasonable accommodation.  The process can be frustrating.  Employers may not cooperate.  Employees may be hesitant to communicate with their supervisors.  We advise that you speak with an employment attorney as soon as possible to help assess your situation.  Often, a short conversation may help you understand your rights and responsibilities under the law.  Many law offices, such as this one, will provide you with a short consultation free of charge.

Appealing the Denial of Unemployment Insurance Benefits

Has the Employment Development Department (“EDD”) unfairly determined that you are ineligible to receive unemployment insurance benefits?  Employers sometimes claim an employee quit or was discharged for misconduct to convince the EDD to deny the employee benefits.  Often, the EDD denies benefits after a brief telephone communication or email without undertaking an adequate  investigation of the facts and circumstances.  The EDD then sends a notice of determination that informs you that you are ineligible to receive benefits.

However, the notice will also inform you of your right to appeal the determination to the Unemployment Insurance Appeals Board, where an administrative judge will allow you and your employer to tell your stories and present evidence and witnesses.  An attorney is not required to represent you as the judge will explain the rules and actively ask questions herself.  You can represent yourself at the hearing or have someone else represent you, even if that person is not a lawyer.  The EDD provides literature explaining further details about the process.

If you feel you need further legal assistance, please contact the law office for a free initial consultation.  For a small fee, our office will review your case and advise you on the legal issues.  If you prefer, our office may also represent you at a hearing in Los Angeles or Orange County.

Pregnancy Discrimination

As recent as February 2012, the United States Equal Employment Opportunity Commission (EEOC) stated that, despite laws to protect women from pregnancy discrimination, it remains a significant problem in the workplace. Women, an important part of the American workforce, have no choice but to resort to discrimination laws to defend their right to work before and after their pregnancies.  If you believe you have been terminated or harassed because you are pregnant, speak to an employment attorney as soon as possible to assess your rights under the law.  Many law offices, such as this one, will provide a short consultation free of charge.