New Developments in Immigration and Criminal Law


The Supreme Court of the United States in Pereira v. Sessions held that the Notice to Appear that is served on individuals to initiate removal proceedings is defective, if it does not contain date and time of the removal hearing that is going to take place.

So, what does this mean for individuals who have been served with these defective removal hearing notices and face removal from the United States?

First, the decision gives thousands of immigrants opportunity to file for termination of proceedings, if their notices do not contain date and time on them. It should be carefully noted: if you have a good case and can get green card in removal proceedings, you should not file for termination.

Second, in order to get --cancellation of removal green card--, individuals must be able to show residency for at least 10 years. The service of the notice to appear stops the --10 year clock--. But, if the notice is defective as shown above, then the clock does not stop and you will benefit from the Supreme Court's ruling.

Third, if you have been ordered removed due to the service of Notice to Appear that stopped the --10 year clock--, you may file a motion to reopen if, (A) your Notice to Appear was defective, and (B) you have the 10 year residency now.

As to criminal law, we are filing post-conviction reliefs under the newly enacted law pursuant to section 1473.7 of the California Penal Code. If you have a California Conviction and you are in removal proceedings, you may be qualified to vacate the conviction if your criminal defense attorney was ineffective in advising you of the immigration consequences. This new law is important, because previously individuals could not vacate their pleas for ineffective assistance of counsel, unless they were in custody or under probation. Convicted individuals can also independently use other avenues for relief if they can actually bring new evidence that could not have been discovered which establishes their innocence or, their plea was entered due to duress, mistake or fraud. These are complicated issues, which will be questioned through witness testimonies in criminal courts to convince the Judge that your post-conviction relief actually deserves merit. Skilled attorneys also should negotiate with the prosecutors to see if they can alter or modify the conviction, which can be used for their benefit.