Post-conviction relief in criminal cases plays an increasingly important role in defense of immigrants in removal proceedings, because Congress has increasingly deprived immigration judges of discretion to grant waivers of deportation for broader and broader groups of removable offenses. Even where relief is theoretically available, it is almost always discretionary, and the immigration authorities may well decline to grant it in an individual case.

For people whose convictions effectively close all doors to immigration relief, vacating the conviction in criminal court is the only way to preserve a chance of remaining in the United States. The underlying convictions are frequently unlawful. Commonly, the defect lies with a noncitizen defendant’s failure to understand or have been advised or defended against a conviction’s immigration consequences. Recognizing that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants,” the Supreme Court held in Padilla v. Kentucky that a defense counsel’s failure to provide this immigration advice renders a conviction unconstitutional.”

Types of Post-Conviction Relief:

There are various types of post-conviction relief available to criminal defendants in the State of California. Each type of post-conviction relief has its own set of eligibility requirements and outcomes. Careful examination of a client’s criminal and immigration records is required prior to determining the effect of post-conviction relief.
Some of the most common post-conviction relief vehicles are listed below:

Penal Code 17(b)

  • Requirements – Conviction of an offense that can be charged as a felony or misdemeanor; sentence consisting of jail/probation (no prison/parole)
  • Outcome – Reduction of the felony to a misdemeanor which may assist in removing an aggravated felony; help lawful permanent residents avoid deportability based on a single offense involving moral turpitude; or establish eligibility for a waiver from removability for undocumented people

Prop 47

  • Requirements – Conviction that is not a super-strike; must be drug possession offense or property crime where the amount is less than $950
  • Outcome – Reduction of the felony to a misdemeanor which may assist in removing an aggravated felony; help lawful permanent residents avoid deportability based on a single offense involving moral turpitude; or establish eligibility for a waiver from removability for undocumented people

Penal Code 1203.43

  • Requirement – Conviction of a drug offense that received pre-trial diversion (DEJ), after 1997, and defendant successful completed diversion program pursuant to PC 1000
  • Outcome – Will erase the conviction for immigration purposes (within the 9th Circuit; Other Circuits remain untested).

Penal Code 1473.7

  • Requirements – Plea of guilty or no contest; no longer in criminal custody or on probation; Failed to meaningfully understand the immigration consequences of a conviction and conviction bars immigration relief
  • Outcome – If granted the motion erases the conviction for immigration purposes; defendant must still answer to charges unless they are dismissed

Penal Code 1016.5

  • Requirements – Court failed to give mandatory statutory advisement about potential immigration consequences
  • Outcome – If granted the motion erases the conviction for immigration purposes; defendant must still answer to charges unless they are dismissed

Penal Code 1018

  • Requirements – Filed within 6 months of probation; show good cause why plea should be withdrawn, including failure to understand immigration consequences
  • Outcome – If granted the motion erases the conviction for immigration purposes; defendant must still answer to charges unless they are dismissed

Petition for Habeas Corpus

  • Requirements – Must be in criminal custody (including probation/parole); any ground of legal invalidity
  • Outcome – If granted the motion erases the conviction for immigration purposes; defendant must still answer to charges unless they are dismissed

Penal Code 1203.4

  • Requirements – Available for any non-prison sentence
  • Outcome – Eliminates ground of removability for first-time drug possession conviction entered on or before July 14, 2011. Only works in the 9th Circuit and only if there was no probation violation. Otherwise does not impact immigration consequences.