February 13, 2017 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
If you are facing an old criminal conviction in California and you are not a United States citizen and you are currently facing adverse consequences in immigration court, you should immediately investigate whether you are eligible to withdraw your guilty plea and possibly have your case dismissed entirely.
Why should this be investigated immediately?
Why is this important? Because we do not yet know the full impact of President Donald Trump’s immigration policies and recent Executive Orders. As I discussed in a recent blog post, the Trump administration has changed enforcement priorities. Undocumented immigrants with any criminal conviction are targeted for prioritized removal. This could extend to any non-citizen. So if you have received a notice to appear in immigration court (aka Executive Office of Immigration Review) or even if there is a final removal order pending against you, contact my office immediately to discuss your situation.
California Legislation – Immigration Consequences
Fortunately, the California legislature enacted a law that provides a statutory mechanism for withdrawing a guilty plea if the defendant can show that either he or she or his/her lawyer was not aware of immigration consequences surrounding the case.
Here’s how it works along with some background. In 2010, the United States Supreme Court decided a case called Padilla v. Kentucky, 559 U.S. 356 (2010).
In the Padilla case, the Court held that a defense lawyer has to give affirmative and competent advice to non-citizen defendants regarding the potential immigration consequences of their criminal cases. In other words, a defense lawyer has to warn a defendant if he or she could end up deported as a result of being convicted, or even pleading guilty, to a crime.
This relatively new California law, Penal Code 1473.7 takes Padilla one step further and says that not only do criminal defendants need to be properly advised, but both defense lawyers and prosecutors are required to contemplate and investigate possible immigration-safe resolutions to criminal cases. In other words, even if your attorney advised you about the immigration consequences, if he or she did not even attempt to negotiate an immigration-safe resolution that may be adequate grounds for a non-citizen defendant to withdraw his or her guilty plea. Additionally, if a defendant can make a showing that he or she did not understand the immigration consequences, that also may be grounds for withdrawing the plea.
Possible Grounds for Withdrawing a Guilty Plea
You may be wondering how this is done? What happens if it’s a very old case? That’s where an experienced criminal defense lawyer who knows how to work these cases comes in.
The first step is finding the file. Even if the conviction is very old, we can obtain your file from the court archives. If this occurred in a county where they destroy files after a period of time, we know how to deal with this situation as well.
We review the court file for any evidence of deficiencies in the taking of the plea. We then track down our client’s prior counsel to discuss whether proper advisements were given and review the attorney’s client file. We can also use transcripts from court proceedings to assess whether an advisement was properly given.
We also put together a package detailing our client’s life in the United States, their work and family history, along with letters of support from members of the community. This is often very effective in bolstering credibility.
We then present all the evidence to the prosecution and the court and make our case.
Most importantly, while there are no guarantees, we do not take the case unless we think there is at least a reasonable chance of prevailing or good arguments to be made.
Bottom line: There are many ways for us to proceed. If you or a loved one are concerned about immigration consequences because of an old criminal conviction, do not hesitate to contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or you can email us using this secure contact form.