Articles Posted in Illegal Immigration

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What happens when a defendant says he didn’t understand that his guilty plea would lead to his deportation?  Is it possible to withdraw the guilty plea when the defendant is no longer in custody on the basis that he didn’t understand the consequences of the guilty plea on his immigration status?
Penal Code section 1473.7 provides that a person who isn’t in custody can make a motion to vacate his plea of guilty based on a claim that he failed to understand that his plea could lead to deportation.  Penal Code section 1473.7 became the law in California on January 1, 2017.  It provided that a person can look back at old convictions and make this motion even though the conviction occurred before the law took effect.
The problem for most people in California is that almost every guilty plea requires a form be filled out and signed by the Defendant at the time of the plea where the Defendant acknowledges that his guilty plea can lead to deportation, exclusion from the United States and denial of naturalization.  In the recent case of People v Perez decided January 23, 2018 the Defendant claimed that he didn’t understand  that his guilty plea would lead to deportation.  Unfortunately for Mr. Perez, there was a plea form that told him that his guilty plea would lead to deportation just like almost all the guilty plea forms used in California.  Mr. Perez was provided an interpreter at the time of the plea who was required to accurately interpret the form for Mr. Perez at the time of his plea.  Therefore the Perez court held that his motion to vacate his guilty plea should be denied because the interpreter explained everything to him and he said he understood at the time he pled guilty.
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A criminal defense lawyer must always be aware of whether his client is a citizen or not. A case can have huge a huge impact on a defendant’s life if he is not a citizen. Many city and county jails now screen their inmates to determine whether they are in the country legally or not.

Even if one is in the United States legally with a “green card” one can be deported if a conviction is sustained in court. In California, every guilty plea on any misdemeanor or felony requires the court tell the defendant that if he pleads guilty it may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. What this means to the criminal defense lawyer is that he must resolve the case for his client without any jail time.

The fact that a client says, “I can’t go to jail” won’t make it so. Many times the lawyer will do all that he or she can but the law requires jail time. Once the defendant enters the jail system the Department of Immigration Customs and Enforcement (ICE) will swoop in on them and issue a detainer holding them in custody even once the jail time is served. A small offense can lead to swift deportation from the country. The defense lawyer knows what is at stake.