Do I have any options if I pled “guilty” or “no contest” in a criminal case if I didn’t know the immigration consequences of that decision?

Maybe. Both state and federal law require criminal defense lawyers to advise their clients of, and defend against, the immigration consequences of a criminal conviction. This means you have the right to receive adequate advice from your criminal defense lawyer about the immigration consequences of your criminal case. The law requires defense lawyers (including public defenders) to ask about their clients’ citizenship status; investigate potential immigration consequences; advise their clients about those immigration consequences; and plea-bargain with an eye toward avoiding them. On the next page, you will find a chart that summarizes situations where immigrants have some options to challenge a plea agreement in their criminal case because you were not adequately advised on the immigration consequences.

“Vacated” – a legal term defined: “Vacate” means to erase, cancel or void. We use it in the chart, so refer back to this definition if you are unclear. But note that if your conviction has been vacated, the District Attorney may be able to prosecute you on the original criminal charges. For all of these, ask you attorney for advice about the best path in your case!

Because Trump is prioritizing the removal of people involved in the criminal justice system, any options for getting rid of convictions is especially critical at this point. Consult with an attorney who specializes in criminal and immigration law to find out what makes sense under your particular circumstances.

This chart summarizes different options for challenging your plea agreement if you did not know or understand the immigration consequences of your conviction. You can share this with your lawyer to help you decide which, if any, are the best options available to you.

METHOD for Challenging a Guilty or “No Contest” Plea

WHEN to Bring This Challenge

WHAT to Challenge in Your Criminal Case

TYPE OF RELIEF You Get if Challenge is Successful

Cal. Penal Code section 1018. An application/motion in the trial court.

Before judgment, or before 6 months after a judge’s order granting probation (where the entry of judgment is suspended and has not been entered).

Criminal defense lawyer’s failure to advise you of immigration consequences before entering your plea. (This claim is called “ineffective assistance of counsel,” a violation of your Sixth Amendment right.)

You can withdraw your plea of guilty or “no contest,” and change it to a plea of not guilty.

Petition for Writ of Habeas Corpus. A petition in one of the appellate district courts.

Any time following the judge’s entry of judgment, where you are in custody (jail or prison) or on supervision (probation, parole, PRCS, etc.).

Criminal defense lawyer’s failure to advise you of immigration consequences before entering your plea. (Again, this claim is called “ineffective assistance of counsel.”)

Judge vacates the conviction. Note: You may open yourself up to re-prosecution on the original criminal charge(s).

Direct Appeal. An appeal in one of the appellate district courts.

A notice of appeal must be filed within 60 days after the judge’s entry of judgment.

Talk to your appellate attorney if your criminal defense lawyer or the criminal trial court judge did not advise you about immigration consequences.

Judge vacates the conviction. Note: You may open yourself up to re-prosecution on the original criminal charge(s).).

Cal. Penal Code section 1016.5. A motion in the trial court.

Any time following the judge’s entry of your guilty or no contest plea.

Where the criminal court judge failed to advise you of the immigration consequences before accepting a plea.

You can withdraw your plea OR the judge vacates the conviction. If your conviction is vacated, you may open yourself up to re-prosecution on the original criminal charge(s).

Cal. Penal Code section 1473.7. A motion in the trial court.

Any time after the criminal trial court judge enters a judgment in your case.

Where an error hurt your ability to understand, defend against, or knowingly accept the immigration consequences of a plea, or new evidence shows innocence.

Judge vacates the conviction. Note: You may open yourself up to re-prosecution on the original criminal charge(s).