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Recent Post-Conviction Relief Cases Provide Mix of Good and Bad for Foreign Nationals Facing Immigration Consequences for their Crimes

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.