What Works For Immigration: Post Conviction Relief Los Angeles in light of Pickering

February 22, 2023

By now most people are aware that having a criminal record can result in deportation from the United States. For most people, this is a devastating experience. Their entire lives including relationships with families, jobs, hobbies, and friendships are at risk of being destroyed forever. Any criminal conviction can result in such or other adverse immigration consequences and for that reason, we recommend that you discuss any Los Angeles criminal case with Los Angeles Attorney who is knowledgeable about immigration law and post-conviction relief in Los Angeles. An attorney who knows how a specific conviction can affect your specific immigration status.

A lot of times, a conviction will take place a long time ago and suddenly you want to change your record. This changing record for old cases is called “post-conviction” relief. You will need the help of a post-conviction attorney Los Angeles to clean your Los Angeles criminal record.

It is thus important the specific type of post-conviction relief you are planning to do for your Los Angeles criminal case. Not all Los Angeles post-conviction relief will help avoid adverse immigration consequences. Also, the post-conviction relief you need will depend on the type of immigration status you are holding (the relief to get citizenship is different than the relief you need to get a greencard).

So Los Angeles Post Conviction attorney and Los Angeles Criminal Defense Attorney are often asked to help with post-conviction to avoid adverse immigration consequences. Here is a quick legal summary:

For immigration purposes, a conviction or sentence becomes ineffective if it is vacated based on procedural or substantive defect” in the underlying criminal proceeding, but it remains effective if its vacatur is motivated solely for rehabilitative considerations or a desire to alleviate the hardship arising from enforcement of the immigration law.

Thus, a justification to withdraw a conviction cannot be based on the judge’s approval of a “settlement offer” but on denial of a motion to withdraw the plea.

  • EXAMPLE: A judge in one of our cases offered to go along with the prosecutors’ offer to withdraw the guilty plea to a charge that created an immigration problem and proceed with a plea to a charge that carries no immigration consequences. However, the judge declined to grant our motion to withdraw the plea and indicated that if we proceed to a hearing, the motion will be denied. The judge did not mind the end result of a different conviction but did mind the procedural method to achieve it. Unfortunately, in light of the previous quote, such a result will not help avoid adverse immigration consequences, and the defendant, despite modifying his criminal record, will “lose” in immigration court.

This logic is based on two immigration federal cases decided at the Board of Immigration Appeals. Those cases are:

  • Matter of Thomas and Thompson, 27 I&N Dec. 674, 676 (a 2019 Attorney General Opinion),
    • (interestingly in Matter or Thomas and Thompson, the appellants argued that the US has to give “full faith and credit” to State laws. The attorney general held that the consent of “full faith and credit” does not apply to Federal Agencies, such as Immigration Court, and only applies to Federal Court. This rationale is based on 28 U.S.C 1738 which references “every court” since the Immigration court is a branch of USCIS and not bound by section 1738 because it is not a court as envisioned by the statute.
  • Matter of Pickering, 23 I&N Dec. 621, 624., a 2003 decision by the Board of Immigration Appeals (BIA)
    • In this case, Mr. Pickering is a Canadian citizen who has a conviction for possession of LSD in 1980 from Canada.
    • In 1997 Mr. Pickering had a Canadian court “quash” a conviction of LSD possession.
    • In 1998 Mr. Pickering’s application for Greencard was denied because the immigration judge decided that the Canadian court “quashed” the conviction for “rehabilitative” purposes to allow him to live in the US
    • Held: if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a “conviction” within the meaning of section 101(a)(48)(A). If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains “convicted” for immigration purposes.
THE REASON THE APPEAL IN PICKERING WAS DISMISSED HAD TO DO WITH THE POOR QUALITY OF DOCUMENTS THAT PICKERING PROVIDED TO THE IMMIGRATION COURT.  The documents from the Canadian court did not reference the reason the conviction was quashed.  However, the affidavit used to have the Canadian court quash the conviction referenced Mr. Pickering's problems to immigrate to the United States.  Therefore, the court concluded that the only evidence of the basis to quash the conviction had to do with the purposes as alleged in the declaration filed by Pickering in Canada.  This created a big problem for him because as an applicant for Greencard, he has to establish eligibility.  He was not able to do that - in fact, he provided evidence that he is not eligible.  

Thus, If you are preparing a declaration to file in Criminal Court to vacate a conviction, you must state clearly that there was a defect in the underlying criminal proceedings to comply with Pickering. Short of that statement, dismissing your criminal case will not help adjust your status in the US or obtain other immigration benefits.

Because a conviction vacatur under California Penal Code 1473.7 or California Penal Code 1016.5 is based on “legal invalidity” (or, in the word of Pickering court, a defect in criminal proceedings), a motion that is granted under either code section will help you clean your record for immigration purposes. If in your case the court is not willing to grant a motion, it is perhaps best to continue litigating or offering a better deal to the judge or prosecutor. The attorney general in his opinion of Thomas and Thompson said:

“…state-court orders will be given effect for immigration purposes only when the order are based on procedural or substantive defect in the underlying criminal proceeding. These state-court orders will have no effect for immigration purposes when based on reasons unrelated to the merits of hte underlying criminal proceeding, such as rehabilitatino or immigration hardship”. …. “going forwardd, immigration courts should apply the test articulated in Matter of Pickering in determineing the immigration consequences of any change in a state sentence, no matter how the state court describes its order.

Thus, dismissals under PC 1203.4, which used to be referenced as expungement, will most likely not work for immigration purposes. Probably the same little weight will be given to pardons and petitions of rehabilitation in California because, as the AG said, such orders are not issued on any defect in proceedings. Similarly, any PC 1385 dismissals, known as “in the interest of justice” dismissals will also not carry weight in Immigration Courts. The best way to address any deportable violation is to file a motion under PC 1016.5 and/or PC 1473.7.

Because US Congress may define terms such as “conviction” for the purpose of federal law in a way that differs from the definition attached to such terms in the state law, a Formal Diversion, does not work for immigration purposes.

A Formal Diversion is a diversion after a plea but before a sentence. Because a conviction in California is entered after a sentence but after a plea in Federal Context, a defendant whose case was dismissed prior to sentencing will face serious immigration consequences. A formal diversion is an opportunity to get a dismissal – however, it will not help in immigration court. Call Los Angeles Criminal Defense Attorney to discuss what is the best outcome you can receive with adverse immigration consequences in mind.

For all city of Los Angeles criminal-related questions, please contact our office to talk to Los Angeles Criminal Defense Attorney directly at (323) 464-6424. We also provide qualified Los Angeles DUI defense because DUI defense is a subcategory of criminal defense.

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