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Accusations and Arraignment
The Law Office of Alexis Saab represents clients in all types of criminal cases, including DUI, possession, theft, assaults, battery and more. If you are involved in a criminal case, it is important that you have an attorney with the experience to represent you aggressively and advocate on your behalf. It is important to have an attorney that will answer your phone calls and respond to your questions quickly. The Law Offices of Alexis Saab has the experience to help you understand the criminal process and ensure you are treated fairly.
If you are in the United States on a visa, visa waiver, or live here but not a United States citizen, you must be cautious of any criminal accusations and charges made against you. A single criminal conviction may have severe immigration consequences resulting in denial of naturalization and/or deportation. A crime could even affect year many years later. That is why it is important to call or text 562-904-2622 today to speak to our experienced attorney directly. Below is an overview of how your immigration status will be affected by a criminal conviction.
The Immigration and Nationality Act (INA) recognizes three categories of crimes that can place a non-citizen at risk of deportation or prevent a non-citizen from ever becoming a lawful permanent resident. Aggravated felonies are the most serious crimes and are specifically defined by statute in the INA. Some common misdemeanor crimes (such as theft and crimes of violence) can be considered aggravated felonies for immigration purposes depending on the sentence imposed. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to one-year imprisonment, including any suspended time (regardless of how much time the person actually does in custody.) A “crime of violence” is a term vaguely defined by the United States Code and could include convictions for assault, arson, and others.
Crimes of moral turpitude are the second category of crimes that can impact a non-citizen’s ability to remain in the United States. Federal circuit court decisions and the Board of Immigration Appeals define these crimes. Generally, a crime of moral turpitude is defined as a crime that encompasses a base or vile act. Although the case law interpreting the term is not entirely uniform, the following types of crimes (felonies or misdemeanors) have been held to involve moral turpitude:
Crimes in which either an intent to defraud or an intent to steal is an element;
Crimes in which there is an element of intentional or reckless infliction of harm to persons or property;
Crimes in which malice is an element;
Sex offenses, in which some “lewd” intent is an element.
Therefore, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude.
A third category of crimes specifically listed in the INA which may either trigger removal (deportation) or prevent a non-citizen from attaining lawful permanent resident status (inadmissibility). Crimes included in this category are violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm (removal only) or destructive device.
The consequences of a criminal conviction do not end after a person is removed (deported) from the United States. A person can permanently barred from entering the U.S. if convicted of an aggravated felony. If still in the U.S., a person's application for naturalization, permanent residency, asylum, cancellation of removal, and other forms of relief may be denied if the person cannot prove that they are a person of good moral character.
There are few remedies available for noncitizens convicted of crimes so the best approach when faced with a crime is to call or text the Law Offices of Alexis Saab at 562-904-2622 to discover how the charges directly affect your immigration status.
After you have suffered a criminal conviction that has harsh immigration consequences, your only relief from removal (deportation) may be attacking the conviction in criminal court. There are many ways to attack a criminal conviction including filing an appeal, statutory motions, and petitions for extraordinary writs like habeas corpus and error Coram Nobis. The grounds for attacking a conviction are many and may include constitutional violations, failure to follow correct court procedure, mistakes in sentencing, errors or misconduct during the criminal proceedings, and claims that your defense counsel was ineffective. For immigration problems caused by a conviction, the most common type of claim is that the criminal attorney failed to explain the immigration consequences before accepting a plea agreement. Each of these issues is very serious and deserves thorough review and, in some cases, can result in a conviction being invalidated (set aside and vacated) or a new trial.
Filing an Appeal
An appeal is a request for a higher court (an appellate court) to review a decision of a lower court. An appeal is not a new trial and the higher court does not retry the case, examine new evidence, or receive witness testimony. The job of the appellate court is to review the proceedings and to determine if there were any legal errors that substantially affected the rights of either party. The appellate court performs this job by reviewing the record (a court reporter's transcript which is a transcription of all oral proceedings), the clerk's transcript (all exhibits, documents, motions, and others that evidenced any written communication), and the arguments presented by the attorneys. The grounds for an appeal are usually 1)bad police arrest 2) improper admission or exclusion of evidence by the judge 3) insufficient evidence 4) ineffective assistance of counsel 5) prosecutorial misconduct 6) jury misconduct and 7) sentencing errors.
A statutory motion, such as a Penal Code §1016.5 is an effective tool to vacate a conviction. That section provides that, before accepting a guilty or no contest plea, the court shall advise a noncitizen criminal defendant of three specific, potential immigration consequences: deportation, exclusion, and denial of naturalization (§1016.5, subd. (a)). If the court fails to advise the defendant, and the defendant shows the conviction may result in one of those consequences, the court shall vacate the judgment and allow the defendant to withdraw the plea (§1016.5, subd. (b).) See below for 1203.43 and 1473.7 motions.
A petition for a writ of habeas corpus is used to challenge issues which were not part of the record during trial or during a guilty plea. For example, if your conviction came as a result of ineffective assistance of counsel or if you were pressured to take a guilty plea, a writ of habeas corpus may remedy the situation.
Coram Nobis is an ancient common-law writ that provides a means of collateral attack in criminal cases where some event outside the trial record has rendered a conviction fundamentally flawed. In California, a Writ of Coram Nobis is a challenge to a criminal conviction and is only available if the defendant (petitioner) can establish the following three elements: 1) that some fact existed which, without a defendant's fault or negligence, was not presented to the court at the trial or during a plea, and which would have prevented the rendition of the judgment; 2) that the new evidence does not go to the merits of the issues of fact determined at trial; and 3) that the defendant did not know nor could he or she have, with due diligence, discovered the facts upon which he or she relies any sooner than the point at which he petitions for the Writ. The main question faced by the judge hearing a Coram Nobis is whether the interests of justice would be promoted by granting the Writ.
Penal Code section 1203.4
If you have been convicted of a misdemeanor or a felony in the past and were sentenced to either formal or informal (summary) probation and now you have successfully completed all the terms and conditions of your probation, you qualify to petition the court for a dismissal of your case. If your petition is granted, your case is not sealed or erased. The conviction remains on your record for many purposes including immigration. The statute does provides that the defendant is 'released from all penalties and disabilities resulting from the offense'. There are many numerous limitations to this relief.
Penal Code section 1203.43
Section 1000 et seq. of the Penal Code provides that if a defendant performs satisfactorily during the Deferred Entry of Judgment (DEJ) period, the charges are dismissed, the guilty plea is not a conviction “for any purpose,” and no denial of benefits or employment may flow from the incident. However, this is not true for noncitizen defendants. Federal immigration law defines “conviction” at 8 USC §1101(a)(48)(A) differently. Because the defendant pleaded guilty and some penalty or restraint was imposed, such as a court fine, even a successfully completed DEJ will count as a drug “conviction” for immigration purposes. All noncitizens become deportable, inadmissible, and subject to mandatory detention without bond (for at least six months), based on the disposition. Penal Code §1203.43 helps correct this problem by declaring that the plea is invalid because of a legal defect in the proceedings. That is, the fact that the DEJ statute provides “misinformation about the actual consequences of making a plea.”
NEW LAW EFFECTIVE 1/1/2017
Penal Code section 1473.7
Section 1473.7 of the Penal Code allows a defendant to raise a motion alleging at least three distinct causes of action in the immigration context: (1) defense counsel violated the duty to investigate and accurately advise the defendant about the specific immigration consequences of a plea (see Padilla v. Kentucky, 559 U.S. 356 (2010)); (2) defense counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration-safe alternative disposition (see People v. Bautista, 8 Cal. Rptr. 3d 862 (2004)); and (3) the defendant failed to meaningfully understand the immigration consequences of a conviction. The new code section also allows an ineffective assistance of counsel claim to be made where there is new evidence of actual innocence.