Post-Conviction Relief

We previously circulated a sample brief,  Using and Defending PC 1473.7 Vacaturs. But, at times, DHS continues to object to 1473.7 vacaturs. Thanks to Pangea Removal Defense Attorney Luis Angel Reyes Savalza and Immigration Attorneys Merle Kahn and Daniel Shanfield for agreeing to sharing their his recent redacted responses to DHS opposition. This briefing includes a response as to why the 2019 amendments to 1473.7 do not, in fact, turn the statute into a rehabilitative mechanism.

Certain criminal convictions are bars to eligibility for DACA.  However, if these convictions can be “expunged,” they will cease to be an absolute bar. Here, an “expungement” refers to any legal process where a criminal court can withdraw, erase, seal, or otherwise eliminate a conviction under a state statute, based on the fact that the person completed probation or other requirements, or for humanitarian reasons. Note that while DACA government materials call this an “expungement,” different state laws may use different terms for this kind of rehabilitative relief. An expungement is not given effect for most immigration purposes – but it does work for DACA.  For example, a misdemeanor conviction for driving under the influence is a bar to applying for DACA as a “significant misdemeanor.” If  the person has the conviction “expunged,” however, they are not barred from applying, and if they have enough positive equities they may well be granted DACA.

This one-pager goes over basic Know Your Rights information for immigrants incarcerated in California prisons.  It includes suggested contact information for families and community members in need of  immigration screening.

This practice advisory explains the various immigration consequences of a conviction for Assault under Texas Penal Code § 22.01 and provides tips for mitigating such consequences in criminal proceedings. This August 2022 update includes analysis of the Texas Assault statute in light of the Supreme Court’s decision in Borden v. United States. The Texas Assault statute is complex and includes several subsections, so we have included a chart in the appendix describing the potential immigration consequences for each subsection of the Texas Assault statute.

In October 2020, DHS and DOJ published a final regulation that sets out wide-ranging and draconian bars to applying for, and bases to terminate a grant of, asylum. For example, the bars include conviction of any felony, any controlled substance offense, a single DUI with injury, a DUI with a DUI prior (regardless of injury), and domestic violence bars based on the underlying conduct.

In some cases, the amount of an imposed, potential, or served criminal sentence can determine the outcome of the immigration case. The law governing how state sentencing dispositions affect immigration penalties is fast-changing. The good news is that an informed defender often can structure a sentence that gives the prosecution what they require, while avoiding immigration penalties. An informed immigration advocate wants to be able to explain this to an immigration judge or adjudicator to win the case.

This one-pager, a partnership between the UCLA Criminal Defense Clinic, Al Otro Lado, and the ILRC, describes the how and why of CA Penal Code s. 1473.7.

In January 2020, the Committee for Review of the Penal Code began convening with the intent of putting forward wide ranging recommendations for reforms to the California criminal legal code. Understanding the significant impact of the process for California’s immigrant population, the ILRC has formally submitted recommendations, advice, and expert testimony as the committee engages in its deliberations. We will continue to update this site with our recommendations to the committee.

Across the country, states and localities are increasingly moving to end marijuana prohibition laws. For immigrant communities, despite the changing attitude toward marijuana-related conduct at the state level, an old conviction can still form the basis for immigration-related consequences at the federal level. Though federal legal reforms may be the only way to completely eradicate the immigration consequences of marijuana-related conduct and convictions, reforms at the state level can nevertheless help stop the arrest-to-deportation pipeline. Drawing from our experience with state and municipal efforts across the country, this resource, jointly produced by the Immigrant Legal Resource Center, the Immigrant Defense Project, and the Drug Policy Alliance, lists best practices for municipalities and states looking to decriminalize in a way that lessens the immigration-related harms of marijuana criminalization.

This brief advisory written by Rose Cahn, ILRC and Anoop Prasad, Asian Americans Advancing Justice Asian Law Caucus, discusses how petitions for relief using PC 1437, the reform to the felony murder rule, can be helpful to immigrants seeking to mitigate immigration consequences.