Post-Conviction Relief

In August 2018, the Board of Immigration Appeals issued a call for amicus briefs to respond to the question of whether an ILRC-sponsored law, California Penal Code 1203.43, effectively vacated convictions for the purposes of federal law. With gratitude for the assistance of Prof. Jennifer Lee Koh, Western State College of Law, and Michael Mehr, the ILRC coordinated 37 other legal services organizations, nonprofits, public defender offices, law school clinics, and law firms, to sign onto an amicus contending that the Board of Immigration Appeals should not treat convictions vacated under Penal Code 1203.43 as convictions for federal immigration purposes.

The BIA has held that that it will not give retroactive effect to California Penal Code § 18.5(a) on convictions from before January 1, 2015. It will consider a California misdemeanor conviction from before January 1, 2015 to have a potential sentence of up to one year, while a misdemeanor conviction on or after that date will have a potential sentence of up to 364 days. Having a potential sentence of just 364 days can help some immigrants who are convicted of a crime involving moral turpitude. (Note that this decision does not affect how immigration treats a sentence that actually was imposed. It only concerns the maximum possible sentence.) Advocates will appeal this decision.

Thanks to the advocacy of the ILRC, CPDA, CACJ, and the ACLU, on September 27, 2018, Governor Brown signed into law amendments to California Penal Code Section 1473.7. The amendments will take effect January 1, 2019. This advisory contains practice tips for advocates and a detailed discussion about the changes to section 1473.7.

On May 16, 2018, the California Supreme depublished People v. Landaverde, which had narrowly construed defense counsel’s pre-Padilla duty to advise immigrants about the consequences of a criminal conviction. The ILRC and Mike Mehr filed the request to depublish which was cosigned by 13 public defender offices, 8 immigrant rights and criminal justice groups; and 9 immigrant rights and criminal justice professors and clinics throughout the state.

The ILRC is proud to stand with 30 of our partners in the criminal justice reform movement to release this report, Repairing the Road to Redemption in California. Our report is part of a national effort, called #TimeDone, to raise awareness of how many people are affected by the barriers associated with convictions and the extent to which they undermine, economic security, family stability, and public safety.

In August 2018, the Ninth Circuit published an opinion holding that methamphetamine as defined under California law is not a controlled substance for federal immigration purposes.  In January 2019, however, the court withdrew the published opinion, and issued a non-published opinion that came to the same conclusion.  See Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and unpublished decision at Lorenzo v. Whitaker, 752 F. App'x 482 (9th Cir. Jan. 17, 2019). The case has been remanded to the Board of Immigration Appeals.  At this time, California defenders must assume that California methamphetamine is a controlled substance for immigration purposes. Immigration advocates in removal proceedings have no precedent to rely upon, but they can make the Lorenzo argument and cite to the unpublished case, while also aggressively pursuing other defense strategies.

For years, the ILRC has published a free chart detailing California crimes and their immigration consequences. Older charts are frequently used by post-conviction practitioners to establish the prevailing professional norms at the time of a conviction. These charts no longer contain accurate law and should not be relied upon for the status of the current immigration consequences of criminal convictions. For a summary of current law, please see www.ilrc.org/chart.

Upon the January 1, 2017 enactment of Penal Code 1473.7, the LA District Attorney took the position that the motions were not ripe unless a final removal order or notice to appear had issued. Thanks to advocacy of organizations and individuals, especially Harland Braun, on April 17, 2018, the LA District Attorney Office changed their policy noting that “the Office is persuaded that the Legislature intended section 1473.7 to apply regardless of whether the moving party has received notice of removal proceedings or a removal order.”

Since 1986, the Continuing Education of the Bar, in its “Crim Law Bible,” California Criminal Law Procedure and Practice, has included a chapter about representing the noncitizen criminal defendant. This chapter and the advice therein is often cited as establishing the prevailing professional norms at the date of any given conviction.

Immigration law has its own definition of what constitutes a criminal "conviction." Because most, although not all, immigration consequences require a conviction, if your client does not have a conviction the immigration case might be saved. This Advisory discusses which dispositions that come out of criminal court actually constitute a conviction for immigration purposes, and how to avoid a conviction. It has been updated to include the BIA's decision that a conviction on direct appeal of right does not have sufficient finality to be a conviction for immigration purposes.