Post-conviction relief ("PCR") refers to the eliminating or otherwise
the reducing of the effects of a criminal conviction. Certain criminal
convictions carry immigration consequences for foreign nationals. Whether
there are any such consequences and how severe they are depend on a number
of factors relating to a certain conviction's specifics, which usually
may be negotiated during the plea-bargaining phase of a foreign national's
criminal proceedings. Oftentimes, however, the foreign national at the
time s/he is in such criminal proceedings is only concerned with whether
s/he will have to serve jail or prison and for how long. The issue of
immigration consequences may escape the plea-bargaining discussion. Nevertheless,
that issue unfortunately may arise thereafter only when the foreign national
is being placed in removal proceedings before a United States Immigration
Court, denied Lawful-Permanent-Resident status ("Green Card")
or another type of lawful immigration-related status, or deemed ineligible
to naturalize as a United-States citizen. At that time, PCR may be the
only avenue to resolve the foreign national's immigration matter.
However, while eliminating or reducing the effects of a certain criminal
conviction may have been easy to accomplish during the plea-bargaining
phase of a foreign national's criminal proceedings, PCR is usually
not as simple because of the reluctance of both the relevant district
attorney's or city attorney's office and the conviction-issuing
criminal court to reexamine a closed criminal matter. A foreign national
typically needs to prove some type of substantive defect in his/her criminal
proceedings that led to his/her mistakenly accepting a plea bargain. Moreover,
the foreign national typically has to prove that if such defect did not
exist, s/he would not have accepted that plea bargain and instead would
have either continued to negotiate with the relevant district attorney's
or city attorney's office or taken the case to trial.
In the past several years, there have been some notable cases that have
swung the pendulum in both ways regarding how easily one can obtain PCR.
The differing decisions have made it difficult for one to know whether
pursuing PCR is worth his/her time, energy, and money. For example, one
of the most famous cases in this area is
Padilla v. Kentucky, wherein the United States Supreme Court recognized
how important the issue of one's immigration matter
is in relation to his/her willingness to accept a proposed plea bargain
in a criminal proceeding and found that the United States Constitution
mandates criminal-defense attorneys to provide on their own initiative, as opposed to
waiting simply to be asked,
accurate advice
to their foreign-national criminal-defendant clients relating to the immigration
consequences of a proposed plea bargain. Nevertheless, a few years later in
Chaidez v. United States, the same United States Supreme Court limited its holding in
Padilla v. Kentucky
to convictions that were
issued only on or after March 31, 2010, which is the publication date of the decision in
Padilla v. Kentucky.
Similarly, the California Supreme Court a little more than four months ago in
People v. Martinezheld that to establish eligibility for PCR based on not being advised
as required by California law
of the immigration-related consequences of criminal conviction, a foreign national
need only prove that s/he would have rejected
a previously accepted proposed plea bargain and not also that s/he would
actually have had a more successful outcome by doing so. That same decision
holds relating to the issue of prejudice, i.e., whether the outcome would
have been different had the substantive defect not existed, that such
a foreign national
need prove only that s/he would have attempted to negotiate
a better plea bargain following such rejection rather than that s/he would
actually have gone to trial.
However, that same California Supreme Court issued a separate decision
earlier this month in
People v. Palmer
holding that in a felony case a criminal-defense attorney's
stipulation to a factual basis, rather than to a specific document establishing the factual basis, for
a person's guilty or no-contest plea in a criminal proceeding is enough
to satisfy
the legal requirement
that there actually be a real reason for that person's acceptance
of such a plea. Because the decision finds
a criminal-defense attorney's stipulation alone to be sufficient, it effectively removes a previously available potential avenue of PCR
based on the conviction-issuing criminal court's not noting on the
record that a particular document reflects the facts necessary to show
that the person in criminal proceedings actually committed the elements
of the crime for which s/he's being convicted.
While navigating the dueling decisions in both the federal and state courts
may appear impossible, skilled legal analysis combined with attention
to detail should reveal the possible avenues of PCR, if any, for a foreign
national in need of it.
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