I generally file at least one or more of the following motions in representing both citizens and non-citizens who have been convicted of crimes having adverse consequences as part of my removal and post conviction relief practice:
- Motions to Reduce Felony Convictions to Misdemeanors are very effective for citizens and non-citizens. These motions can eliminate the adverse consequences of felony convictions for all purposes. If granted, winning such a motion sometimes eliminates the need to report the conviction when applying for most jobs. Reduction can also eliminate the adverse immigration consequences of felony convictions that could have been used for removal/deportation purposes.
Motions to Modify conviction(s) are brought for non-citizens whenever their prior criminal conviction(s) are classified by the U.S.C.I.S. as “aggravated felonies”. Such convictions may result in permanent removal (deportation) from the U.S. By modifying the sentence, for example, from one year to 364 days, we can change the classification from an aggravated felony to a simple felony which may not be used as a basis for deportation by the U.S.C.I.S. or by the immigration courts.
Motions to Expunge Prior Convictions are important to citizens and non-citizens alike. Motions to expunge criminal convictions can be granted only after successful completion of probation. When granted by the court, the conviction does not have to be disclosed when asked in employment applications: ..."Have you ever been convicted of any crimes?" You can answer "no" to this question. However, the conviction does remain on your criminal record and does not eliminate adverse immigration consequences. These motions are effective in establishing the requirements of good moral character and rehabilitation for those aliens petitioning for lawful permanent residency and applying for naturalization. Expungements differ from motions granted because a person was factually innocent of the charge(s) they were arrested for. [See discussion in paragraph No. 4 below.]
- Motions to Destroy Records of Persons Factually Innocent may be brought in any case where a person has been arrested and/or prosecuted but where no conviction occurred. This motion requests the court to make a finding that the person is factually innocent of the charges for which he or she was arrested. If granted by the court, then any reference to the arrest record shall bear the notation “Exonerated” and shall not be admissible as evidence in any action. In addition, destruction of all entries and notations pertaining to the arrest record shall be accomplished by permanent obliteration. The record shall be prepared again so that it appears that the arrest never occurred. If there are no other entries contained in that person’s criminal history record other than the arrest, then the entire record shall be physically destroyed. This motion is different from an expungement of your criminal conviction following successful completion of probation. Here, the actual record of the arrest itself is physically obliterated from all government’s records so that it appears the arrest never occurred and therefore, can not be used against you. This motion is particularly helpful for non-citizens seeking to adjust their status, defend themselves in removal proceedings, and to establish good moral character when applying for a visa, lawful permanent residency and naturalization. [For further information, please refer to Paragraph 3. above on Expungements.]
- Motions to Vacate Criminal Convictions are among the most important and effective ‘tools’ an experienced immigration and criminal defense attorney has to defend a foreign born client in immigration court removal (deportation) proceedings. This motion to vacate is filed in the California state court where the criminal conviction occurred. The grounds for filing this motion arise when the non-citizen was not adequately informed by the judge or the defense attorney about the adverse immigration consequences of being convicted of the crime for which the non-citizen has pled guilty or no contest. This motion can be brought even many years after the non-citizen was sentenced. If the criminal conviction is vacated, then the underlying immigration removal proceeding can be terminated because there would no longer be a criminal conviction upon which the government could rely to deport that person.