Navigating Immigration Consequences: The Importance of Post-Conviction Relief for Non-Citizens

By Brian Figeroux | Editorial Credit: Skyward Kick Productions / shutterstock.com 

For non-citizens, addressing the immigration consequences of a conviction through post-conviction relief can be critical for avoiding deportation or other adverse immigration actions. Legal strategies like vacating convictions based on ineffective counsel or modifying sentences to avoid aggravated felony designations can play a significant role in preserving immigration status. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

The U.S. immigration system has strict consequences for non-citizens with criminal convictions, often leading to deportation or disqualification from legal immigration benefits, including green card renewals, naturalization, and certain visas. Moreover, individuals who have criminal records, whether citizens or non-citizens, often face long-term barriers to employment, housing, and other areas of life. To address these challenges, individuals may seek post-conviction relief either to minimize or eliminate the immigration consequences of a past conviction or to expunge the conviction for other personal and legal purposes.

This comprehensive analysis will explore the entire process of appealing or seeking post-conviction relief for past criminal convictions in New York State (NYS) and at the federal level. This guide will cover various legal mechanisms available to individuals, focusing on the impact of these mechanisms on immigration consequences and the pursuit of expungement or record sealing. We will analyze state and federal processes, eligibility requirements, key procedural steps, possible legal strategies, and the implications of each option. In addition, this analysis will provide relevant contact information and web resources to assist individuals in navigating these complex legal processes.

1. Post-Conviction Relief and Immigration Consequences

1.1 Immigration Consequences of Criminal Convictions

Non-citizens in the United States, including green card holders (lawful permanent residents), temporary visa holders, asylum seekers, and undocumented individuals, may face severe immigration consequences for certain criminal convictions. Key consequences include:

• Deportation (Removal): Individuals convicted of certain crimes may be subject to deportation proceedings.
• Inadmissibility: Some convictions can make individuals inadmissible to the United States, meaning they are barred from entering the country or applying for certain immigration benefits.
• Loss of Lawful Permanent Residence: Convictions for “aggravated felonies” or crimes involving moral turpitude can result in a lawful permanent resident (green card holder) losing their status and being removed from the country.
• Ineligibility for Naturalization: Non-citizens with certain criminal convictions may be deemed to lack the required “good moral character” to become U.S. citizens.

Given these serious consequences, individuals may pursue post-conviction relief to reduce or eliminate the impact of their criminal record on their immigration status.

1.2 Common Types of Criminal Convictions Impacting Immigration

Some of the most common types of convictions that result in immigration consequences include:

• Aggravated felonies: These include crimes such as murder, rape, drug trafficking, or theft offenses with a sentence of at least one year.
• Crimes involving moral turpitude (CIMT): This is a broad category that includes theft, fraud, assault, and other offenses deemed to violate the public trust.
• Drug offenses: Even minor drug offenses, such as possession, can lead to deportation.
• Domestic violence: Convictions for domestic violence-related offenses can have severe immigration consequences, including removal.

1.3 Legal Grounds for Post-Conviction Relief in Immigration Cases

For individuals facing immigration consequences due to a criminal conviction, post-conviction relief can take several forms, including:

• Vacating a conviction: Individuals may file a motion to vacate a conviction if they can prove that their guilty plea or conviction was unconstitutional or based on inadequate legal representation.
• Modification of sentence: Reducing a sentence to less than 12 months can remove an aggravated felony designation, which is critical for avoiding deportation.
• Coram nobis relief: This is a legal mechanism available for individuals no longer in custody to challenge their conviction based on newly discovered evidence or constitutional violations.
• Expungement or sealing of records: While expungement does not completely erase the conviction for immigration purposes, it can mitigate its impact on other areas of life.

2. Post-Conviction Relief in New York State

New York State offers several post-conviction relief options for individuals seeking to mitigate the impact of their criminal convictions. This section will focus on key state-level mechanisms, including appeals, motions to vacate, motions to modify sentences, and record sealing or expungement.

2.1 New York State Appeals Process

2.1.1 Grounds for Appeal

An individual may file an appeal in New York State if they believe that their conviction was based on legal errors that occurred during the trial, plea bargaining, or sentencing phases. Some common grounds for appeal include:

• Ineffective assistance of counsel: The individual argues that their defense attorney failed to provide competent legal representation, violating their constitutional rights.
• Legal errors: Mistakes in jury instructions, improper admission of evidence, or legal misinterpretations by the trial judge.
• Insufficient evidence: The individual contends that the evidence presented at trial was insufficient to support a conviction.
• Prosecutorial misconduct: Allegations of improper actions by the prosecution, such as withholding evidence or making inappropriate comments during trial.

2.1.2 Procedure for Filing an Appeal in New York State

• Notice of appeal: The first step is to file a notice of appeal with the court that rendered the conviction. This must be done within 30 days of the conviction or sentencing. Missing this deadline can lead to the dismissal of the appeal.
• Appellate brief: After filing the notice, the appellant (the person appealing the conviction) must submit an appellate brief, outlining the legal arguments for overturning the conviction. This is a formal written document that presents the errors made during the trial.
• Appellate court review: The appeal is reviewed by an appellate court, which may involve oral arguments. The appellate court does not retry the case but evaluates whether the legal errors alleged in the appeal warrant a reversal or modification of the conviction.

2.1.3 Outcomes of an Appeal

The possible outcomes of an appeal in New York State include:

• Affirmation of the conviction: The appellate court upholds the original conviction, meaning the appeal is denied.
• Reversal of the conviction: The appellate court overturns the conviction, which may lead to a new trial, a dismissal of charges, or another form of relief.
• Modification of the sentence: The court may modify the sentence, reducing its severity or imposing other terms.

Appeals in New York can take several months or years, depending on the complexity of the case and the appellate court’s docket.

2.2 Motion to Vacate a Conviction (CPL § 440.10)

2.2.1 What is a Motion to Vacate?

Under Criminal Procedure Law (CPL) § 440.10, individuals can file a motion to vacate a conviction if they believe their conviction was obtained in violation of their constitutional rights. This motion is often used by non-citizens facing immigration consequences to challenge the validity of a guilty plea or conviction.

2.2.2 Grounds for a Motion to Vacate

Common grounds for filing a motion to vacate include:

• Ineffective assistance of counsel: If the defendant’s attorney failed to properly advise them of the immigration consequences of a guilty plea, this could form the basis for vacating the conviction. The U.S. Supreme Court’s decision in Padilla v. Kentucky (2010) requires defense attorneys to inform non-citizens of the immigration risks associated with a plea deal.
• Unconstitutional plea: If the defendant was not properly informed of their rights or the consequences of their plea, the plea may be considered involuntary and invalid.
• Newly discovered evidence: If new evidence emerges that could exonerate the defendant, a motion to vacate may be filed to have the conviction set aside.
• Prosecutorial misconduct or other constitutional violations: Any other constitutional violations, such as withholding exculpatory evidence, could justify a motion to vacate.

2.2.3 Filing a Motion to Vacate

The procedure for filing a motion to vacate under CPL § 440.10 involves the following steps:

• Preparation of the motion: The motion must be supported by affidavits, legal arguments, and any supporting documentation that demonstrates the constitutional violation or other grounds for relief.
• Filing the motion: The motion is filed in the court where the conviction was rendered. There is no strict time limit for filing a motion to vacate, but it should be filed as soon as possible once the grounds for relief are discovered.
• Court hearing: In some cases, the court may schedule a hearing where the defense and prosecution can present arguments. The court will then decide whether to grant or deny the motion.

2.2.4 Potential Outcomes

• Granting the motion: If the court grants the motion, the conviction is vacated, meaning it is nullified. This could result in a dismissal of charges, a new trial, or another resolution of the case.
• Denying the motion: If the motion is denied, the conviction stands. The defendant may be able to appeal the denial, depending on the circumstances.

2.3 Motion to Modify or Reduce Sentence (CPL § 440.20)

2.3.1 What is a Motion to Modify Sentence?

A motion to modify or reduce a sentence can be filed under CPL § 440.20 when an individual believes that their sentence was unlawful or excessive. For non-citizens, this motion can be particularly important if the length of the sentence triggers immigration consequences (e.g., an aggravated felony designation under immigration law).

2.3.2 Filing a Motion to Modify Sentence

The process of filing a motion to modify or reduce a sentence follows similar steps to those for vacating a conviction:

• Preparation of the motion: The motion must include legal arguments and documentation supporting the request for sentence modification.
• Filing the motion: The motion is filed in the same court where the individual was sentenced. The filing must be done within a reasonable period of time, although the law does not impose a strict deadline.
• Court review: The court will review the motion and may schedule a hearing where the defense and prosecution present arguments.

2.3.3 Outcomes

• Modification of the sentence: The court may reduce the sentence, for example, lowering a prison term from 12 months to 11 months, which could remove the aggravated felony designation under immigration law.
• Denial of the motion: If the court denies the motion, the original sentence remains in effect. The individual may have the option to appeal the denial.

2.4 Record Sealing and Expungement in New York State

2.4.1 Expungement vs. Record Sealing

New York State does not offer traditional expungement, which permanently erases a criminal record. Instead, the state provides record sealing, which limits access to an individual’s criminal record by the general public while still preserving it for law enforcement and certain agencies.

• Expungement: In states that allow expungement, a conviction is completely erased from an individual’s record, as if it never occurred. New York does not offer this option, except in certain cases of marijuana convictions (discussed below).
• Record Sealing: Sealing a record limits who can access it, though the record is not entirely erased. Sealed records are typically inaccessible to employers, landlords, and most individuals conducting background checks. However, law enforcement agencies and immigration authorities can still access sealed records.

2.4.2 Record Sealing under CPL § 160.59

In 2017, New York State enacted CPL § 160.59, which allows individuals with certain criminal convictions to apply for record sealing if they meet specific eligibility requirements.

Eligibility for Record Sealing

To be eligible for record sealing under CPL § 160.59, individuals must meet the following criteria:

• Conviction of a non-violent offense: Violent felonies, sex offenses, and certain other serious crimes are not eligible for sealing.
• At least 10 years since sentencing: At least 10 years must have passed since the individual’s conviction or release from custody, whichever is later.
• No more than two convictions: Individuals may have no more than two convictions, and only one can be a felony.

Procedure for Record Sealing

The procedure for applying to seal a record under CPL § 160.59 involves several steps:

• Preparation of the application: The individual must submit a formal application to the court that issued the conviction. The application must include information about the conviction, evidence of rehabilitation, and any supporting documentation, such as character references or proof of employment.
• Court review: The court will review the application and may schedule a hearing to determine whether sealing is appropriate. The prosecution may oppose the application, and the court will consider factors such as the seriousness of the offense, the individual’s conduct since the conviction, and any hardships caused by the criminal record.
• Decision: If the court grants the application, the record is sealed, meaning that it is no longer visible in most background checks. If the application is denied, the individual may appeal the decision or reapply later.

2.4.3 Marijuana Expungement under the Marihuana Regulation and Taxation Act (MRTA)

In 2021, New York passed the Marihuana Regulation and Taxation Act (MRTA), which legalized recreational marijuana use and automatically expunged certain marijuana-related convictions. Under this law, individuals convicted of specific marijuana offenses are eligible for automatic expungement, meaning their convictions are completely removed from their criminal record.

Eligible Offenses for Expungement

The MRTA covers several marijuana-related offenses, including:

• Possession of small amounts of marijuana: Convictions for possession of up to 16 ounces of marijuana are eligible for expungement.
• Marijuana-related misdemeanors: Certain misdemeanors related to the sale or possession of marijuana are also covered by the law.

Automatic Expungement

The expungement process under the MRTA is automatic, meaning individuals do not need to file a formal application. The state is responsible for identifying eligible convictions and ensuring that they are expunged. Once expunged, the record is removed from public view and is no longer accessible to employers, landlords, or other private parties.

3. Federal Post-Conviction Relief Options

In addition to the post-conviction relief mechanisms available at the state level, individuals convicted of federal crimes may seek relief through the federal court system. This section will explore federal appeals, motions for post-conviction relief under 28 U.S.C. § 2255, and the federal expungement process.

3.1 Federal Appeals Process

3.1.1 Grounds for Federal Appeals

Individuals convicted of federal crimes can appeal their conviction or sentence based on several legal grounds, including:

• Ineffective assistance of counsel: Similar to state appeals, individuals may argue that their defense attorney failed to provide competent legal representation, violating their Sixth Amendment rights.
• Constitutional violations: Federal appeals can be based on violations of constitutional rights, such as unlawful search and seizure (Fourth Amendment) or violations of due process (Fifth Amendment).
• Procedural errors: Mistakes in the trial process, such as improper jury instructions or the wrongful admission of evidence, can form the basis for an appeal.

3.1.2 Procedure for Filing a Federal Appeal

The federal appeals process involves several key steps:

• Notice of appeal: The first step is to file a notice of appeal with the federal district court where the conviction was rendered. This must be done within 14 days of the conviction or sentencing.
• Appellate brief: The appellant must submit a formal appellate brief, outlining the legal arguments for overturning the conviction or sentence.
• Appellate court review: The federal appellate court (U.S. Court of Appeals) reviews the case, considering the arguments made in the briefs and, in some cases, hearing oral arguments. The appellate court does not retry the case but focuses on whether legal errors occurred that warrant reversal or modification of the conviction.

3.1.3 Possible Outcomes

The outcomes of a federal appeal may include:

• Affirmation: The appellate court may affirm the original conviction, meaning the appeal is denied.
• Reversal: The appellate court may reverse the conviction, which could lead to a new trial, dismissal of charges, or other forms of relief.
• Remand: The appellate court may remand the case to the lower court for further proceedings, such as resentencing or reconsideration of evidence.

3.2 Post-Conviction Relief Under 28 U.S.C. § 2255

3.2.1 What is a 28 U.S.C. § 2255 Motion?

Federal prisoners can file a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. This motion is similar to New York State’s CPL § 440.10 motion to vacate a conviction and is used to challenge the constitutionality of a federal conviction or sentence.

3.2.2 Grounds for Filing a 28 U.S.C. § 2255 Motion

Common grounds for filing a § 2255 motion include:

• Ineffective assistance of counsel: The individual argues that their attorney failed to provide effective legal representation.
• Constitutional violations: The conviction or sentence violated the defendant’s constitutional rights, such as due process or equal protection under the law.
• Newly discovered evidence: Evidence that was not available at the time of the trial and that could have altered the outcome of the case.

3.2.3 Filing the Motion

The process of filing a § 2255 motion follows these steps:

• Preparation of the motion: The motion must include detailed legal arguments and supporting evidence, such as affidavits or records demonstrating the constitutional violation.
• Filing the motion: The motion is filed in the federal district court where the conviction occurred. There is a one-year deadline to file the motion, starting from the latest of the following events:
  • The date the conviction became final.
  • The date new evidence was discovered.
  • The date a new legal right was recognized by the U.S. Supreme Court.
• Court review: The court will review the motion and may schedule a hearing. If the court finds that the motion has merit, it may vacate the conviction, order a new trial, or modify the sentence.

3.2.4 Outcomes

The possible outcomes of a § 2255 motion include:

• Granting the motion: If the court grants the motion, the conviction or sentence may be vacated or modified. The court may also order a new trial.
• Denial of the motion: If the motion is denied, the individual may appeal the decision to a federal appellate court.

3.3 Federal Expungement

3.3.1 Expungement of Federal Records

Unlike many states, the federal government does not have a comprehensive expungement statute for criminal convictions. Expungement of federal criminal records is rare and generally only available in specific circumstances, such as cases involving wrongful arrests or acquittals.

• Expungement for wrongful arrest or acquittal: If an individual was wrongfully arrested or acquitted of federal charges, they may be eligible to have their arrest record expunged.
• Presidential pardon: A presidential pardon does not expunge a conviction, but it can alleviate some of the legal consequences of a federal conviction, such as restoring civil rights.

3.3.2 Presidential Pardons

Individuals convicted of federal crimes may apply for a presidential pardon, which serves as an official statement of forgiveness. While a pardon does not expunge the criminal record, it can restore certain rights, such as the right to vote or the right to hold public office.

Application Process for a Presidential Pardon

• Filing the application: The individual must submit a formal application to the Office of the Pardon Attorney, which reviews pardon requests and makes recommendations to the President.
• Eligibility: Individuals must have completed their sentence, including any probation or parole, at least five years before applying for a pardon.
• Decision: The President has the final authority to grant or deny a pardon. There is no formal appeals process for denied pardon requests.

4. Legal Strategies for Minimizing Immigration Consequences

When pursuing post-conviction relief to minimize immigration consequences, several legal strategies can be employed. These strategies focus on addressing the underlying conviction or sentence to mitigate its impact on an individual’s immigration status.

4.1 Vacating a Conviction to Remove Immigration Consequences

Vacating a conviction is one of the most effective ways to address immigration consequences. By vacating the conviction, the individual may eliminate the legal basis for deportation or other adverse immigration actions.

• Motion to vacate based on ineffective counsel: One of the most successful strategies is filing a motion to vacate based on ineffective assistance of counsel under Padilla v. Kentucky. In this case, the U.S. Supreme Court held that defense attorneys must inform non-citizen clients of the immigration consequences of a guilty plea. If the attorney failed to do so, the conviction may be vacated.

4.2 Modifying a Sentence to Avoid Aggravated Felony Designation

If an individual’s conviction is classified as an aggravated felony under immigration law, they may face deportation and other serious consequences. Reducing the sentence to less than 12 months may remove the aggravated felony designation, which can help the individual avoid deportation.

• Filing a motion to reduce the sentence: A motion to reduce the sentence under CPL § 440.20 or 28 U.S.C. § 2255 can be filed to reduce the length of the sentence, thereby removing the aggravated felony designation.

4.3 Seeking Post-Conviction Relief Before Immigration Proceedings

It is often advisable to seek post-conviction relief before immigration proceedings begin. By vacating or modifying the conviction before the individual is placed in removal proceedings, they may be able to avoid deportation or other immigration consequences altogether.

Conclusion

The process of seeking post-conviction relief for immigration or expungement purposes is complex, but it provides individuals with an opportunity to mitigate the long-term consequences of a criminal conviction. Whether at the state or federal level, mechanisms such as appeals, motions to vacate, sentence modifications, and record sealing can help individuals remove or reduce the negative impact of their criminal record.

For non-citizens, addressing the immigration consequences of a conviction through post-conviction relief can be critical for avoiding deportation or other adverse immigration actions. Legal strategies like vacating convictions based on ineffective counsel or modifying sentences to avoid aggravated felony designations can play a significant role in preserving immigration status.

By utilizing the resources and legal pathways outlined in this analysis, individuals can take meaningful steps toward rehabilitating their legal records and improving their prospects for the future.