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Court Finds California Felony Conviction Reclassified as a Misdemeanor Retains Its Immigration Consequences

The Ninth Circuit concluded that the petitioner’s felony conviction for Possession of Marijuana for Sale under California Health & Safety Code §11359 rendered the petitioner removable, even though the conviction had been recalled and reclassified as a misdemeanor under California’s Proposition 64. The court explained that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy.

AG Barr trying to redefine criminal relief and what is a conviction.

On May 28, 2019, the Attorney General (AG) certified to himself two cases, Matter of Thomas and Matter of Thompson. 27 I&N Dec. 556 (A.G. 2019). The AG has asked the parties and interested amici to “address whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled ‘vacatur,’ ‘modification,’ ‘clarification,’ or some other term-should be taken into consideration in determining the immigration consequences of the conviction.” This seems to relate to the BIA’s decisions in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (relating to vacatur of convictions), Matter of Cota, 23 I&N Dec. 849 (BIA 2005) (relating to sentence modifications), and similar cases.

The Court Says Petitioner Failed to Show That His Conviction Was Not Vacated for Immigration Purposes

The Eighth Circuit upheld the BIA’s finding that the petitioner failed to meet his burden of proving that his state court conviction for theft in the fourth degree, a crime involving moral turpitude, was vacated for a substantive or procedural reason and not for immigration purposes. The court also found that the IJ did not err when it pretermitted petitioner’s application for cancellation of removal on the grounds that he was convicted of a crime of moral turpitude, even though he was never admitted to the United States.

Need Criminal Relief?

  1. he DC Circuit reversed the district court, finding that the post-plea misrepresentations made by the appellant’s attorney regarding the potential immigration consequences of pleading guilty to federal wire fraud could constitute ineffective assistance of counsel. The court remanded for the district court to consider whether the appellant can show that he was prejudiced by his attorney’s misrepresentations.

Got a crime?

The Tenth Circuit granted the petition for review, holding that the Board of Immigration Appeals’ decision to retroactively apply Matter of Briones to the petitioner’s case found no support in the principles underlying the law of retroactivity, in U.S. Supreme Court or circuit precedent, or in relevant authority from other jurisdictions. The court further found that the petitioner’s reliance on the court’s 2005 decision in Padilla-Caldera v. Gonzales, which wasamended and superseded in 2006, was reasonable.

Another Win for the Law Offices of Brian Lerner

1994 felony forgery conviction reduced to a misdemeanor and expunged despite the DA’s opposition and despite the fact that client had a warrant for his arrest for over 6 years.  Client can now apply for his green card based on his marriage to a U.S. citizen.

Court Finds Judge’s Deportation Warning at Guilty Plea Proceeding Does Not Satisfy Padilla

The Fifth Circuit reversed the district court, holding that a judge’s statement at a guilty plea proceeding that deportation is “likely” does not foreclose a noncitizen defendant’s ability to demonstrate prejudice as a result of counsel’s failure to provide Padilla-required advice about the immigration consequences of the plea.

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