A criminal conviction can trigger serious consequences, such as hefty fines or years in prison. For immigrants, the stakes are even higher. A conviction could prevent you from qualifying for U.S. citizenship in the future, and it could even result in immediate deportation.
If you aren’t a U.S. citizen, and you’ve been charged with a crime, you will want to do everything you can to avoid a conviction or mitigate the consequences it will have on your immigration status. This includes filing a motion or appeal if the court issues an unfavorable ruling.
The following is an overview of criminal appeal options for immigrants. If you need personalized counsel and skillful representation, don’t hesitate to get in touch with our team at The Law Office of Yifei He, PLLC. We can help you understand everything you need to know about crimmigration.
Filing a 440 Motion for Ineffectiveness of Counsel
Did a lawyer recommend pleading guilty without informing you of how a guilty plea might affect your immigration status? Even if you aren’t a U.S. citizen, the Sixth Amendment of the U.S. Constitution gives you the right to counsel and effective assistance of counsel. In other words, you have the right to an attorney, and that attorney must provide effective guidance and representation.
In Padilla v. Kentuckyin 2010, the Supreme Court decided that an attorney failing to inform their client of the immigration consequences of a guilty plea qualifies as ineffective assistance of counsel. As such, the client can then file a motion under Article 440 of N.Y. Criminal Procedure Law.
This motion will challenge the validity of a conviction. If the court grants the motion, the conviction will be vacated. However, you will then be in the same position as you were before receiving the conviction. The charges will not disappear. A 440 motion, therefore, is not the same as an appeal. You will still need to re-plead, proceed to trial, or seek dismissal of the charges.
Appealing the Criminal Conviction
Although you aren’t a U.S. citizen, you still have the right to appeal a criminal conviction. If the appeal is successful, you may either reduce the sentence or overturn the conviction entirely.
The exact process can vary depending on the court system, your conviction, and other factors, although you will generally have 30 days after your sentencing to file a notice of appeal. Your attorney will prepare an extensive brief and argument to persuade the judge to adjust or overturn your conviction.
Filing an Immigration Appeal or Motion
If a conviction has triggered a removal proceeding or jeopardized your eligibility for an immigration status or benefit in the future, you may be able to overcome this issue through an immigration appeal or a motion to reopen or reconsider.
Rather than trying to overturn your criminal conviction, an immigration appeal seeks to overturn a decision made by an immigration court, such as:
- An application denial
- A visa petition denial
- An order for removal (deportation)
An appeal asks the Board of Immigration Appeals (BIA) or another appellate agency to review a decision made by an adjudicating officer in a different organization, such as DHS, ICE, or USCIS. As such, immigration appeals are most appropriate when you believe the adjudicating officer has made a mistake or violated your rights.
When you file a motion, on the other hand, you are asking the same office that issued the decision to make a different decision. A motion to reopen your case is when new evidence has come to light, and you want the office to review that evidence. A motion to reconsider is when you believe the office made a mistake, and you want them to reconsider your circumstances based on the same information.
Let Our Attorney Determine the Best Way Forward
Are you struggling to stay in the United States or qualify for an immigration benefit because of a conviction or other factor of inadmissibility? Bring your case to The Law Office of Yifei He, PLLC, our attorney can do everything in his professional power to secure a favorable resolution on your behalf. Whether we file a 440 motion, appeal the conviction, or file an immigration appeal or motion, you can trust our firm to fight fiercely for your rights and future.