Many people convicted of crimes who are not American citizens find that certain convictions can prevent them from becoming citizens or at least make it much more difficult to do so. Generally, but not always, felony convictions having to do with violence, drug sales and other offenses can cause an individual to have great hardship in this regard even though many years have passed since the offense occurred.

Immigration Attorneys who are representing individuals with criminal convictions that are blocking progress toward citizenship may direct their clients to contact a criminal defense attorney to see about vacating (removing) the conviction so that the conviction is no longer a hindrance toward obtaining citizenship.

A criminal defense attorney can look to see whether there was a mistake made in the underlying case. For example, was the Defendant properly advised of the maximum punishment he was subject to? Was he properly advised of his trial rights? And finally, was he properly advised as to the immigration consequences?

Any one of these issues can lead to the conviction being vacated. An experienced criminal defense attorney should be able to examine the guilty plea forms and the advisement of rights and make a determination whether there is a flaw which may permit a successful motion to vacate the conviction or a withdraw of the guilty plea.

Even if the Defendant appears to have been properly advised as to his rights, an attack may be made on the advisement of immigration consequences. The United States Supreme Court held in Padilla v. Kentucky that even if the court does advise the Defendant that deportation is a possible consequence, that advisement is not necessarily sufficient. The Defendant must be properly advised by his criminal attorney at the time as to his particular potential immigration consequences.

The idea being that the Supreme Court does not think a boilerplate advisement of consequences is sufficient and that the Defendant is entitled to an informed discussion on whether his particular circumstances are such that with a guilty plea he will in fact be subject to deportation or other immigration consequences.

Penal Code Section 1016.5 specifically states what the immigration advisement must be for cases after 1978. It reads as follows:

If you are not a citizen, you are hereby advised that conviction of this offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. 

Notably, some older cases do not contain this language in its entirety and as such the conviction may be overturned and the case dismissed. As mentioned above, even if this advisement is properly administered to the Defendant he may still challenge the conviction on the ground that the advisement was not sufficient because his lawyer at the time did not properly advise him on his particular immigration situation.

Those parts of the law blocked by the Judge included that section which permitted law enforcement to inquire as to the immigration status of an individual if the individual were for example, detained on a traffic matter. The Judge also blocked that part of the law which required immigrants to carry their immigration papers on them at all times.

The Judge ruled that only the federal government has the power to detain people on those grounds, not the states. The Arizona Governor and other officials who were proponents of the new law said they would continue to fight to keep those portions of the law in the bill, presumably on appeal. The Arizona bill as originally drafted would have permitted law enforcement to conduct an investigation into the immigration status of the detained individual which could lead to an arrest for being in the state illegally. This would have been a significant expansion of the state’s rights into what the U.S. Constitution says is exclusively the jurisdiction of the Federal government. It would have also opened up Hispanic people and those who may “look like immigrants” to be subject to questioning by law enforcement. A whole host of constitutional issues would have been raised to include equal protection issues and rights protected under the 4th amendment and known as search and seizure.