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some defendants have stated being told that a period of 10 years needed to pass before a criminal plea could be withdrawn or vacated.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 Waiting may be detrimental to your chances of having the plea withdrawn or vacated.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attorney as soon as he or she believes that guilty plea has caused a negative immigration consequence and needs to be withdrawn.

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