Will My California Conviction Affect My Immigration Case?

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Will My California Conviction Affect My Immigration Case?

The short answer is that it depends. In order to answer this, we first need to know what you are applying for. Is it DACA, citizenship, a green card, a u visa, or something else? The reason this is important is because different laws apply. In other words, a California criminal conviction may be bad for one immigration benefit, but not bad for another immigration benefit.

After we determine what you’re applying for, we then need to get the criminal record on your case. If the conviction happened year ago, it will be important to do a background check to see what is in your history. From there, we can then analyze all of the criminal convictions and focus in on the worst ones. The criminal record will need to be obtained from the California Superior Court. At this point, we will need to analyze what happened during the conviction.


California Penal Code Section 1473.7
A new California law has given immigrants the legal right to challenge an old conviction, and win if a prejudicial error existed. What this means, is that if the defense attorney failed to investigate and accurately advise you of the specific, not general, immigration consequences, you may have a valid defense. In addition, if the defense counsel failed to plea bargain for an immigration-safe alternative plea, this is also another grounds to vacate the prior conviction.

If a person is able to have their motion to vacate granted, this will make it as though the crime never occurred. At this point, the district attorney can agree to drop the charges or have the immigrant answer to new ones. Nonetheless, the immigrant will get credit for the time they already served.

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Legal References
  • California Penal Code § 1473
  • People v. Patterson, E060758 (Cal. Ct. App. Aug. 29, 2017)
  • California v. Rodriguez, E069339 (Cal. Ct. App. Aug. 16, 2019)
 
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