New law could clear old crimes

Process of challenging old convictions aimed to help immigrants subject to deportation

A new California law allows people who are no longer in jail to challenge old convictions, a move that could offer deportation relief to immigrants as President Donald Trump’s administration targets those with prior crimes.

The law — known as “Criminal procedure: postconviction relief” — allows people who have claims of innocence, or people whose attorneys failed to warn them about the immigration consequences of a plea deal, a way of challenging those convictions.

“It couldn’t have come at a better time,” said Rose Cahn, an attorney with the Immigrant Legal Resource Center, who specializes in post-conviction relief and helped draft the bill.

“Immigrants who have come into contact with the criminal justice system are under unique and enhanced scrutiny,” she said. “They are looking to what self-defense strategies they can employ now to protect themselves from being targets of immigration enforcement.”

Cahn said she’s worked with clients whose deportation proceedings sometimes did not begin until decades after they committed an offense.

“There’s a mistaken impression that deportation proceedings are automatic as soon as someone enters a criminal conviction,” she said.

This law is expected to develop quickly at a time when immigration arrests have increased by nearly 40 percent in early 2017 as agents — emboldened by Trump’s pledge to build a border wall and deport criminals — detained more than 40,000 people suspected of being in the country illegally.

Under Trump’s administration, any immigrant living in the U.S. illegally who has been charged or convicted of any crime, or even suspected of committing a crime, is now an enforcement priority. This could include people arrested for shoplifting or minor traffic offenses.

For Assemblywoman Lorena Gonzalez, D-

San Diego, who authored the law, her legislation is a way to help keep families together.

Even though current law requires non-citizen defendants to be informed of the immigration consequences of convictions, some defense attorneys still fail to do so, she said.

“Failure to understand the true consequences of pleading guilty to certain felonies, has led to the unnecessary separation of families across California, Gonzalez said.

But, not all are in favor of it.

Assemblywoman Melissa Melendez, R-Lake Elsinore, voted against it several times on the Assembly Floor and in the Assembly Public Safety Committee.

“I opposed this legislation because it will allow individuals who are convicted criminals and here illegally to avoid deportation,” Melendez said via e-mail.

“The President has made it clear that he is only interested in deporting people that are here illegally with criminal records,” she added. “Under this law, that effort just got a lot more difficult.”

Cahn, however, saw the need for this law early on in her career.

In 2009, Cahn and a team of attorneys represented a Korean immigrant with a conviction that made him deportable. They challenged the conviction based on the grounds that he was not advised of immigration consequences when he entered a plea.

They lost the case, with California Supreme Court justices arguing that legislation would be necessary to create a vehicle to challenge old convictions.

The bill, AB 813, passed the Assembly 61-15 in August, and it was signed by Governor Jerry Brown in September. Soon after it took effect, immigration attorneys began filing motions under the law.

Attorney Hadley Bajramovic, who is based in Riverside and San Bernardino counties, said her office filed a motion around February or March and found the judge was not yet familiar with this law.

Since then, her office has argued the motion on several occasions. They have not been successful so far, but have appealed those decisions.

Cahn said she has seen victories throughout the state, including in Los Angeles, San Mateo, Alameda and San Francisco counties.

“I will say that Riverside and Orange counties are some of the more conservative counties in the state … There are certain place-specific challenges,” Cahn said. “We would like to think there is a neutral and impartial applicator of all of our laws (but) we know all too well that there is a degree of subjectivity in district attorneys and in judges throughout the states.”

Since it took effect, Cahn has met with district attorneys throughout the state to educate them about the new law.

In the end, Cahn said it’s important to recognize all people have basic constitutional protections regardless of immigration status.

“What his law does is, it provides a mechanism to ensure that no person is placed in removal proceedings as a result of an unconstitutional conviction,” she said.