Category Archives: Criminal Law

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some defendants have stated being told that a period of 10 years needed to pass before a criminal plea could be withdrawn or vacated.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 Waiting may be detrimental to your chances of having the plea withdrawn or vacated.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attorney as soon as he or she believes that guilty plea has caused a negative immigration consequence and needs to be withdrawn.

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.