How to Get Post Conviction Relief: A Step-by-Step Guide for Green Card Holders
A criminal conviction can trigger deportation proceedings and jeopardize your green card, even if you've lived in the United States for years. Post-conviction relief offers a critical pathway to challenge or modify convictions that threaten your immigration status. California law provides several remedies specifically designed to address immigration-related errors in criminal cases. This guide walks you through the exact steps to pursue post-conviction relief, from determining your eligibility to navigating court hearings. Understanding your options is essential when your future in America is at stake.
Understanding Post-Conviction Relief for Green Card Holders
What is Post-Conviction Relief
Post-conviction relief gives you the legal mechanism to challenge or overturn a criminal conviction after your case has concluded. The underlying convictions that threaten your immigration status are frequently unlawful. In reality, the defect often stems from your failure to understand the immigration consequences or your attorney's failure to advise you properly about how the conviction would affect your green card.
The Supreme Court recognized the severity of this issue in Padilla v. Kentucky, holding that deportation represents an integral part of the penalty imposed on noncitizen defendants, sometimes the most important part. Given that ruling, defense counsel's failure to provide immigration advice renders a conviction unconstitutional. This creates a legal foundation for seeking relief when your attorney failed to warn you about deportation risks before you accepted a plea deal.
For people whose convictions effectively close all doors to immigration relief, vacating the conviction in criminal court represents the only way to preserve a chance of remaining in the United States. Post-conviction relief serves to prevent and correct wrongful deportations and denials of immigration status.
Why Post-Conviction Relief Matters for Your Green Card
Immigrants with criminal convictions face greater vulnerability to deportation than any other group and make up the overwhelming majority of deportations that occur annually. A minor criminal conviction that carries no long-term consequences for a U.S. citizen can become a life sentence for someone with legal residency.
The definition of "conviction" under immigration law extends further than criminal law standards. A conviction exists for immigration purposes when a judge or jury finds you guilty, or when you enter a guilty or nolo contendere plea, combined with any form of punishment or restraint on your liberty. Adjudication can be withheld and still count as a conviction if these conditions are met.
An expunged record does not remove the underlying conviction for immigration purposes. The Board of Immigration Appeals has held that state court actions to expunge, dismiss, cancel, or vacate a record through rehabilitative statutes have no effect on removing the conviction in the immigration context. However, if a judgment is vacated for cause due to constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. This distinction makes pursuing the right type of post-conviction relief essential.
Common Criminal Convictions That Affect Green Card Status
Several categories of criminal convictions trigger deportation proceedings or make you inadmissible:
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Crimes Involving Moral Turpitude (CIMTs): Offenses involving dishonesty, fraud, or intent to harm. If convicted within five years of obtaining your green card and the crime carries a sentence of one year or longer, you face deportation. Two or more CIMTs at any time after admission, not arising from a single scheme, also make you deportable.
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Aggravated Felonies: Murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, money laundering, fraud over $10,000, theft with a one-year sentence, and numerous other offenses. Conviction of an aggravated felony at any time after admission triggers deportation.
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Drug Offenses: Any controlled substance violation makes you deportable, except for a single offense involving possession for personal use of 30 grams or less of marijuana.
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Domestic Violence Crimes: Convictions for domestic violence, stalking, child abuse, child neglect, or child abandonment at any time after admission result in deportation.
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Firearms Offenses: Convictions for purchasing, selling, possessing, or carrying firearms or destructive devices in violation of any law trigger deportation.
Depending on the conviction, immigration judges may lack discretion to grant relief from deportation, regardless of mitigating factors in your case. Specifically, this applies to many misdemeanor convictions, not just felonies.
Step 1: Determine if You Qualify for Post-Conviction Relief
Qualifying for post-conviction relief requires meeting specific legal standards that differ from criminal law requirements. Before filing any motion, you must verify that your situation meets the criteria immigration courts recognize.
Check if Your Conviction Counts Under Immigration Law
Immigration law applies its own definition of conviction, which often catches people by surprise. A formal judgment of guilt entered by a court constitutes a conviction for immigration purposes. However, a conviction also exists even when adjudication of guilt is withheld, provided two conditions are met: a judge or jury found you guilty (or you entered a guilty or nolo contendere plea or admitted sufficient facts to warrant a finding of guilt), and the judge ordered some form of punishment, penalty, or restraint on your liberty.
This means court-ordered drug treatment or domestic violence counseling alternatives to incarceration count as convictions for immigration purposes if you entered a guilty plea, even if that plea was later vacated through a rehabilitative program. Prosecutors and defense attorneys sometimes misunderstand this distinction, telling defendants that certain dispositions "don't count as convictions" under state law while they absolutely count under immigration law.
Certain dispositions do not constitute convictions for immigration purposes. A deferred adjudication without a guilty plea is not a conviction. Similarly, juvenile delinquency adjudications do not count as convictions if analogous to federal juvenile delinquency adjudications. A general court martial judgment carries the same force as a criminal conviction, but disciplinary actions in lieu of court martial do not.
The timing and basis for vacating a judgment determines whether it remains a conviction. If a judgment is vacated for cause due to constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. As opposed to this, judgments vacated solely for rehabilitation purposes or to avoid immigration consequences remain convictions in the immigration context.
Verify Your Current Immigration and Criminal Status
Several forms of post-conviction relief require that you no longer be in criminal custody. Penal Code 1473.7 specifically requires that the defendant is no longer in criminal custody. In this case, constructive custody may apply, but actual incarceration would disqualify you from this particular remedy. Secondly, habeas corpus petitions require that you be in criminal custody, either actual or constructive.
Your immigration status also affects available options. Post-conviction relief is only available if you are suffering from some form of collateral consequence as a result of your conviction. The pending immigration consequences create the collateral impact necessary to pursue relief.
Review Time Limits and Deadlines for Filing
Meeting filing deadlines represents one of the most common reasons post-conviction relief gets denied. Time limits vary significantly depending on the type of relief you seek. A motion to withdraw a guilty plea under Penal Code 1018 must be filed within six months of probation. Federal habeas corpus petitions generally carry a one-year deadline from the date the judgment becomes final.
California post-conviction relief deadlines vary by court and type of motion. While some forms of relief have strict time limits, exceptions often exist that must be investigated. For instance, certain grounds may have specific filing windows, while others can be brought later but may face procedural obstacles if the issue could have been raised earlier. Successive petitions also face restrictions that require careful review.
Therefore, consulting with counsel to calculate exact deadlines based on your judgment date, mandate, and any prior filings becomes essential before taking action.
Step 2: Identify the Right Type of Relief for Your Case
Selecting the appropriate relief mechanism depends on the specific defects in your criminal proceedings and your current custody status. California law provides several distinct pathways, each with different eligibility requirements and immigration effects.
Penal Code §1473.7 for Immigration-Related Errors
This statute allows you to file a motion to vacate a conviction or sentence if you are no longer in criminal custody. Three grounds support relief: prejudicial error damaging your ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of a conviction or sentence; newly discovered evidence of actual innocence; or conviction obtained based on race, ethnicity, or national origin. The motion is deemed timely filed at any time you are no longer in criminal custody. The court must grant the motion if you establish grounds by a preponderance of the evidence and show the conviction currently causes or has potential to cause removal or denial of immigration benefits. California passed section 1473.7 in 2017, allowing more individuals to seek post-conviction relief.
Penal Code §1016.5 for Missing Advisements
Before accepting any plea except for infractions, the court must advise you that conviction may result in deportation, exclusion from admission, or denial of naturalization if you are not a citizen. The court shall vacate the judgment if it failed to give this advisement after January 1, 1978, and you show the conviction may cause these immigration consequences. Absent a record showing the court provided the advisement, you are presumed not to have received it. The BIA has held that vacatur based on failure to give the required judicial advisement eliminates the conviction for all immigration purposes.
Penal Code §1203.4 Expungement
This rehabilitative relief permits withdrawal of a guilty plea if you completed probation or as a matter of discretion. However, expungement has immigration effect in only two situations: it eliminates certain older drug convictions under Lujan-Armendariz within the Ninth Circuit, and it eliminates a conviction for DACA purposes. Otherwise, immigration authorities will not give effect to expungement because it is vacated for rehabilitation rather than legal error.
Reduction of Felony to Misdemeanor Under §17(b)
When a crime is punishable by state prison or county jail at the court's discretion, the court may declare it a misdemeanor when granting probation. This reduction applies only to "wobbler" offenses. If you were sentenced to a term including probation, you might petition to reduce the felony to a misdemeanor. The court cannot reduce a wobbler when a prison sentence has been imposed.
Other Relief Options for Specific Situations
Penal Code 1203.43 provides diversion dismissal to withdraw a guilty plea in cases where you were granted Deferred Entry of Judgment on or after January 1, 1997, performed satisfactorily, and charges were dismissed. Penal Code 1018 allows motions to withdraw a plea for good cause prior to sentencing or within six months of being sentenced to probation.
Step 3: Prepare and File Your Motion
Documentation forms the foundation of any successful post-conviction relief motion. The preparation phase requires methodical gathering of records and evidence that demonstrate the legal error in your case.
Gather Your Criminal Court Records
Obtaining complete court records starts with identifying the county where your conviction occurred. Criminal courts maintain files containing minutes, case documents, and orders that do not appear in online portals. To request these records, submit form CR-147 for criminal records name searches or form CR-114 for copies with credit card payment. Courts charge 50 cents per page for copies received in person or by mail.
Send your written request with a self-addressed stamped envelope and payment to the appropriate criminal clerk's office in your county. Most criminal clerk's offices operate Monday through Friday, 8:00 am to 4:00 pm, excluding court holidays.
Collect Evidence to Support Your Motion
Supporting evidence strengthens your motion, though courts cannot require third-party affidavits as a condition for docketing your application. Gather documents showing the immigration consequences you faced, correspondence with your attorney, and any evidence demonstrating you did not understand these consequences when entering your plea.
Write Your Declaration Explaining the Error
A declaration from your original plea counsel is not required to win a motion under Penal Code 1473.7. The Supreme Court ruled in People v. Manzanilla that moving parties need not provide plea counsel declarations. Similarly, contemporaneous evidence is helpful but not required under the Espinoza decision. Your personal declaration explaining what you understood about immigration consequences carries significant weight.
File Your Motion with the Criminal Court
Use form CR-187 to ask the court to vacate your conviction or sentence. Applications must be verified, subject to perjury laws for knowing falsehoods. No filing fee is required as a condition for docketing post-conviction relief applications. Submit your completed motion to the criminal court that entered your original conviction.
Step 4: Navigate the Court Process and Protect Your Green Card
What to Expect at Your Court Hearing
Once you file your motion, the court may schedule a hearing or decide based on the pleadings and supporting documents filed by your attorney and the prosecution. You bear the burden of proof and must show by a preponderance of the evidence that your rights were violated due to misadvice or legal error.
How the Court Decision Affects Your Immigration Case
If the court grants your motion and vacates your conviction, the conviction appears as though it never occurred. A judgment vacated for cause due to constitutional defects, statutory defects, or pre-conviction errors affecting guilt is not considered a conviction for immigration purposes. Building a detailed evidentiary record proves essential, as the Board of Immigration Appeals examines the state court record to determine the reason for vacatur.
Notify Immigration Authorities of the Vacated Conviction
After successfully vacating your conviction, file a motion to reopen with immigration authorities without delay. This advisory addresses the impact of post-departure bars and reinstatement of prior removal orders on post-conviction relief motions to reopen.
Handle Denials or Appeals if Necessary
If denied, you maintain the right to appeal the decision through appropriate channels based on California appellate procedures.
Related Articles
- How An International Student’s Visa Might Be Affected By an Arrest
- What are the Immigration Consequences of My Criminal Conviction?
- Immigration Law: Crimes Involving Moral Turpitude
- Charged with Domestic Violence During Your Visa Application?
- Can You Get Deported for Drugs in California?
Conclusion
Post-conviction relief represents your pathway to preserving your green card and future in the United States. The steps outlined above give you a clear roadmap, from determining eligibility to navigating court hearings. Unquestionably, this process requires precision and attention to legal details that immigration authorities scrutinize carefully.
Take action as soon as possible, as long as you understand the specific type of relief that applies to your conviction. The distinction between vacatur for legal error versus rehabilitation matters significantly for immigration purposes.
Your case demands thorough preparation and proper documentation. Follow these steps methodically, consult with qualified counsel, and you can potentially eliminate the conviction threatening your immigration status. Time is critical when deportation proceedings loom.
References
https://www.ilrc.org/immigrant-post-conviction-relief
https://www.immigrantdefenseproject.org/litigation/conviction-definition/
https://www.immdef.org/post-conviction-relief
[4] – https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-2
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1227&num=0&edition=prelim
https://cc-courts.org/criminal/records.aspx
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Yuliya Kelmansky is an Expert Attorney who has over 10 years of practice defending a variety of cases.
