Post-Conviction Relief for Immigrants

Where a state advisal statute exists, as in California, it is possible to make the following argument.  In passing California Penal Code § 1016.5, effective January 1, 1978, the California Legislature determined that in fairness to immigrant criminal defendants, the court must inform each defendant (citizens as well as noncitizens), that if they are not citizens of the United States, a plea to the specific offense charged may have the consequences of deportation, exclusion, and denial of naturalization.[7]

The Legislature continued: “It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unaware of the possibility of [the specified immigration consequences].”[8]  In other words, the Legislature anticipated that prosecution and defense would renegotiate the case, after the defendant learned of the immigration consequences, to enable the parties to achieve an appropriate criminal disposition that does not trigger adverse immigration consequences.  That appears to be the entire point of this legislation.  One hopes that the court and counsel will agree that renegotiating the criminal disposition to avoid adverse immigration consequences is an appropriate goal in the present case, now that the client has been informed of the immigration consequences of the plea that were omitted in the original plea proceeding, and has become aware of the actual impact of the conviction upon his immigration status.

[7] California Penal Code § 1016.5(d).

[8] Ibid. (emphasis supplied).