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California law provides a very important right for immigrants facing criminal charges. Most immigrants know that they can be deported if they are convicted of committing certain crimes. But, too many immigrants only learn, after they plead guilty to a crime, that they will be deported. In many other states, by that time it is too late. In California, PC 1016.5 allows immigrants in this situation to ask the criminal court to allow them to withdraw their guilty plea and enter a plea of “Not Guilty” if the judge did not inform them of possible immigration consequences. When a court grants this request, the immigrant and his attorney are given time to work with the prosecutor to try to renegotiate a plea agreement that avoids deportation.
When immigrants are represented by experienced attorneys, who are knowledgeable about the immigration consequences of criminal convictions, avoiding deportation is addressed before there is a guilty plea. But inexperienced, uninformed, or careless attorneys too often allow and even encourage their immigrant clients to plead guilty. When the client is a U. S. citizen, a plea bargain agreement is often the best result, since citizens cannot be deported. But even legal permanent residents that have lived here for decades are always subject to deportation. THIS IS WHY IT IS SO IMPORTANT FOR IMMIGRANTS TO ALWAYS HIRE THE RIGHT ATTORNEY IN CRIMINAL CASES IMMEDIATELY AFTER BEING ARRESTED.
Immigrants that request courts to allow them to withdraw unwise guilty pleas under PC 1016.5 must meet certain requirements. They must show that the judge did not inform them that a guilty plea may make them deportable. Judges are required by law to inform immigrant criminal defendants as follows:
“If you are not a citizen, you are hereby advised that conviction of the offense for which
you have been charged may have the consequence of deportation, exclusion from admission
to the United States, or denial of naturalization pursuant to the laws of the United States.”
Judges must give this advisement to immigrant defendants prior to allowing them to enter a guilty plea to a crime. This advisement is not required for infractions (like traffic tickets). Absent a record that this advisement was given, it will be presumed that it was not. IMMIGRANT DEFENDANTS CANNOT BE ASKED THEIR IMMIGRATION STATUS, NOT EVEN BY THE JUDGE. Immigrant defendants must also show that they did not know of the immigration consequences of a guilty plea and that they would not have pleaded guilty if they had known of the immigration consequences of pleading guilty. This can be done by showing that they have defenses to the deportation because they have strong ties to this country like family, a home, a job, and friends. Immigrants that are facing deportation based on a guilty plea to a crime(s) should immediately consult with an attorney that is experienced in representing immigrants in criminal cases.
¡NO SE DEJE! ®
JESS J. ARAUJO, ESQ.