Certain criminal convictions can result in deportation proceedings simply because of the nature of the crime. If deportation proceedings have been initiated against you as the result of a criminal offense, then it is important to contact a deportation defense attorney immediately.
Because Congress has enacted laws that prevent deportation judges of the discretion to grant waivers of deportation for many different groups of removable offenses, post-conviction relief is becoming increasingly important in the deportation process.
Additionally, when relief is available, it is almost always discretionary, and the immigration authorities may decline to grant the relief.
Depending on the facts of your specific situation, you may be eligible for post-conviction relief for your deportation proceedings. Post-conviction relief is a motion made in the State Criminal Court to modify, reduce, expunge, vacate, or somehow alter the plea, sentence, or record of the defendant in the deportation proceedings.
Post-conviction relief is usually used when the defendant does not qualify for deportation relief or any of the accepted deportation defenses. If the criminal act has triggered the deportation proceedings, then post-conviction relief may be the only option to avoid deportation.
Even when there is an argument that the original conviction does not trigger deportation proceedings, it is usually best to pursue post-conviction relief in criminal court in addition to fighting the deportation proceedings in immigration court.
There are four factors that are generally necessary for success in a post-conviction relief matter:
- A motion or petition must be filed in the criminal court where the conviction occurred
- This motion or petition could also include a memorandum of law, supporting declarations, other exhibits, the proposed order, any necessary responses to the prosecutor’s objections, and more.
- This motion or petition is drafted by the attorney as a result of research, investigation, and strategic planning performed during the due diligence part of the process
- There must be grounds that the conviction is legally invalid so that the court will reopen the matter in such a way that it will allow for us to eliminate the original conviction for the purposes of defense in deportation proceedings.
- A “Safe Haven” disposition to which the defendant can plead guilty to another or lessor offense in order to replace the original conviction with a new conviction that will not be harmful in immigration court.
- Favorable factors to motivate the prosecutor and court to assist in the process of avoiding immigration consequences from the conviction.
If you are facing deportation and you have a criminal charge on your record, then you should contact a deportation defense attorney immediately to discuss your options and the best path to take to prevent removal proceedings.