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Appellate Practice + 440 Motions

Many times noncitizens choose to represent themselves in the criminal court. They are often unaware of the actual immigration effects of pleading guilty because they did not have legal representation. At the criminal trial, they did not understand the necessary language used by the court officials that “if you are not a citizen, you may be deported.” Some noncitizens mistakenly believe that the advice is meant for undocumented immigrants because as lawful permanent residents in the United States they cannot be deported. Nothing could be further from the truth.

Criminal conviction normally results in immediate removal of noncitizens from the United States. After the noncitizens have served the sentence, immigration authorities usually detain the immigrants and start removal proceedings against them. This is especially frequent since 9/11. However, many noncitizens are unaware of an important relief when they are faced with the challenge of deportation or when seeking a job after serving the sentence. The noncitizen may seek the discretionary post-conviction relief in the immigration court, which allows the noncitizens to attack and in some cases overturn a criminal conviction or sentence. In many cases, this is the only hope for the immigrant to avoid deportation or denial of a job.

This unique proceeding requires the service of an immigration attorney with the necessary skills and experience to get the job done. However, it is very important to get legal representation in pursuing this remedy. The lawyer can guide the immigrant through this complex proceeding because while it is a useful remedy, the noncitizen must understand that the immigration court does not grant all applications for post-conviction relief. There are a number of things, which the court considers before granting the relief. Here, an experienced attorney in post-conviction relief will be of invaluable help to the immigrant.

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Each case is determined on its own merits. If the noncitizen is a repeated convict with a number of deportable convictions, that case might be hopeless. On the other hand, a clean and sober immigrant may have a good chance of removing or reducing the criminal conviction. Sometimes when considering the motion for post-conviction, the criminal court and the prosecutor look favorably on factors such as the number of years the noncitizen has lived in the United States or whether he or she has been an important and respected member of the community.

In some cases, the judge may even reduce certain felony convictions to misdemeanors. A noncitizen who receives a probationary sentence might be a beneficiary of post-conviction relief. The good thing about this relief is that an immigrant may avoid the dreaded one felony or two/three misdemeanors bar, which normally disqualifies him or her from getting amnesty. In fact, when the court reduces a felony to a misdemeanor, the noncitizen no longer has the stigma of being an aggravated felon for certain “crimes of violence” and convictions of simple possession of a controlled substance.

Criminal conviction or sentence may result in deportation from the United States. However, the timely filing of a motion for post-conviction relief may prevent deportation. It is advisable that the immigrant seeking to challenge deportation or the job hunting immigrant seeking to remove the stigma of a criminal conviction retain the services of an attorney who has the expertise and experience in post-conviction proceedings.

This article is not intended to substitute for legal advice. Please contact an attorney experienced in post-conviction relief for further information on this important remedy.

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