Post-Conviction Relief for Immigrants

(C)  Proving Citizenship.  The court may require the moving party to prove that s/he is a foreign national, since a U.S. citizen cannot suffer adverse immigration consequences.[237]  California Penal Code § 1016.5(b), for example, requires the defendant to show that the conviction may result in immigration consequences in order to set aside the plea.

            In one California case, defendant submitted a declaration stating that until speaking with his attorney on a certain date, “I believed and understood that I was a naturalized citizen of the United States.”  His attorney declared that Suon “is a Cambodian national.”  “However, both of these declarations lack foundation for the conclusions asserted.  Moreover, defendant has failed to produce any documentary evidence, such as a birth certificate or passport, to support his claim that he is a Cambodian national, or at least not a United States citizen.  Thus, defendant has failed to meet his burden of producing clear and convincing evidence that his guilty plea subjects him to adverse immigration consequences.”

[237] People v. Suon, 76 Cal.App.4th 1 (1999).