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Post-Conviction Relief

The Immigrant Legal Resource Center (ILRC) is one of only a few technical assistance organizations nationally and in California with expertise on immigrant post-conviction relief, including clean slate and other record clearance remedies. Immigrants with criminal convictions are more vulnerable than any other group to being a target for deportation and make up the overwhelming majority of deportations that occur in any year.

The ILRC works to protect the rights of individuals who have come into contact with the criminal justice system through policy and advocacy efforts, numerous in-person and webinar trainings, case-specific assistance, and our pro bono immigrant post-conviction relief project.

For people whose convictions effectively close all doors to immigration relief, vacating the conviction in criminal court is the only way to preserve a chance of remaining in the United States. The underlying convictions are frequently unlawful. Commonly, the defect lies with a noncitizen defendant’s failure to understand or have been advised or defended against a conviction’s immigration consequences. Recognizing that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants,” the Supreme Court held in Padilla v. Kentucky that a defense counsel’s failure to provide this immigration advice renders a conviction unconstitutional.”

Latest Resources

FAQs & Explainers
Resources
Publication Date
05/22/2024
Thousands of noncitizens in California are at risk of removal because they have criminal convictions that were unlawfully imposed. California law provides several ways to eliminate these convictions with post-conviction relief (PCR). The challenge is that there are not enough PCR experts to meet the need, especially for low-income immigrants.
FAQs & Explainers
Resources
Publication Date
01/09/2024
Criminal Convictions can have serious consequences on peoples’ lives – especially non-citizens who wish to stay in the United States. Many immigration benefits have criminal bars, meaning that certain convictions will prevent you from getting a lawful immigration status, like permanent residence (green card). This Community Explainer offers some options for those who have had certain convictions related to domestic violence or human trafficking, with insights about how to define these crimes, some example scenarios, and explanations about the benefits of a legal tool called a “vacatur.”
Practice Advisory
Resources
Publication Date
03/20/2023
Immigration and crimes, or “crim-imm,” can be challenging.  Both immigration and criminal law are difficult on their own. To do crim-imm work, advocates who are expert in one area must learn at least something about law and procedure in the other. It can be hard to know where to start the analysis.
 
This advisory provides a step-by-step approach to help advocates analyze a case and identify goals. It can be used by criminal defense counsel, immigration advocates, and post-conviction relief counsel. It is not a substitute for consulting with a crim/imm expert, but using it should increase your expertise and help you to better discuss the analysis with the client, argue it to the judge or official, or negotiate with the other side.
FAQs & Explainers
Resources
Publication Date
03/01/2023
Cannabis legalization has long been a growing theme across the United States, having a place in virtually every recent election cycle and in policy debates related to the federal government’s role in restricting its access, sale, use, and distribution. With many states moving to legalize cannabis for recreational use and with the Biden administration recently deciding to pardon individuals for certain federal convictions related to its possession, it may seem as though we are coming to the end of the cannabis prohibition era. Unfortunately, not only is that moment yet to arrive, but the dangers for immigrants, in particular, could not be higher. This downloadable guide walks through the current intersection of cannabis, criminal, and immigration law and also shares insights about what a pathway out of prohibition could look like.
Practice Advisory
Resources
Publication Date
11/29/2022
his fact sheet describes new Cal. Penal Code 372.5 (AB 2195). As of January 1, 2023, a California defendant who is charged with any of several drug offenses, from infractions to felonies, can ask for the drug charge/s to be dismissed and instead to plead guilty to being a “public nuisance” (Penal Code § 370). Section 372.5 provides that in this circumstance, the public nuisance offense is punishable as an infraction, a misdemeanor, or a “wobbler” offense, depending on the offense level of the drug charge that was dropped. The defense must decide to ask, and the prosecution must agree, to go forward with Penal Code 370/372.5.
Practice Advisory
Resources
Publication Date
11/02/2022
Survivors of human trafficking and of domestic or sexual violence often are charged and convicted of offenses that arose as a direct result of their exploitation. For noncitizens, the criminal record can cause deportation or destroy their eligibility for humanitarian visas. In the last five years, California has enacted multiple laws to avoid this injustice in criminal court, including a defense to a criminal charge and a vehicle to vacate a past conviction for survivors who were coerced to commit the offense, or in other cases mitigation of sentence. This advisory describes the new criminal laws and their immigration effect, so that criminal defenders and immigration and survivor advocates are aware of these options.
Practice Advisory
Resources
Drug offenses cause the harshest, most disproportionate immigration penalties of any offense. Criminal defenders and immigration advocates need information to work aggressively to defend immigrant clients. This advisory provides strategies to avoid a drug conviction, including how and when to use Penal Code § 372.5 (2023), along with practice tips, resources, and arguments to support negotiating for an immigration neutral plea or disposition in criminal court.
Archive
Resources
Publication Date
07/14/2022
In 2016, California enacted California Penal Code § 1473.7, a post-conviction relief vehicle allowing people no longer in criminal custody to vacate legally defective convictions. Ever since, the ILRC has supported advocates to implement this law, including helping to defend the vacaturs from DHS attempts to erode its impact. In Arias v. Garland, a case currently pending before the Ninth Circuit, the court will decide whether 1473.7 should be given full effect, erasing the conviction for immigration purposes. The ILRC helped coordinate Mr. Arias’s amicus strategy and we offer his redacted merits brief as well as the extraordinary amicus briefs submitted in support so that they might help practitioners facing similar arguments. The briefing in the Arias case represents some of the most robust arguments for why 1473.7 vacaturs should be recognized, but we also include below the various prior briefs, advisories, and sample materials we have developed in the defense of the full reach of 1473.7.
Practice Advisory
Resources
Publication Date
07/12/2022
Thousands of noncitizens in California are at risk of removal or cannot qualify for immigration relief because they have unlawfully imposed criminal convictions. The good news is that there are several options under California law to eliminate these convictions for immigration purposes, using post-conviction relief (PCR).  This Advisory can help advocates to identify which of these forms of California PCR may help your client, and direct you to more resources about how to obtain it.
Practice Advisory
Resources
Publication Date
06/27/2022
This advisory provides detailed instruction on how and where to file a motion to reopen for attorneys who have successfully vacated a conviction for immigration purposes and their client is now eligible for termination or a form of relief. In addition, the advisory addresses the impact of the post-departure bar and reinstatement of prior removal order on post-conviction relief motions to reopen.

California Post-Conviction Relief Vehicles

An infographic summarizing the various California post-conviction relief vehicles, their requirements, and their immigration benefits
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Helping Immigrant Clients with Post-Conviction Legal Options

A guide created by the ILRC and Californians for Safety and Justice to help build the capacity of legal service providers and pro bono attorneys to provide post-conviction relief to immigrants who would face certain deportation without it.