KEYSER LAW BLOG


What Is Post-Conviction Relief for Immigrants?
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What Is Post-Conviction Relief for Immigrants

 

If you have been convicted of a crime, there are steps you can take to appeal your conviction (have the decision reversed) or to obtain post-conviction relief.

 

Post-conviction relief isn’t a substitute for a direct appeal. But in the event that a direct appeal is unavailable, post-conviction relief could potentially take the form of release, a new trial, modification of your sentence, and any other relief that is deemed proper and just. Additionally, the court can also make supplementary orders to the relief granted, regarding such matters as rearraignment, retrial, custody, and release on security.

 

Under Minnesota law, a person convicted of a crime can try to petition for relief if:

 

  • The conviction obtained or the sentence or other disposition made violated the person’s rights under the Constitution or laws of the United States or of the state; or
  • Scientific evidence not available at trial, obtained pursuant to a motion granted, establishes the petitioner’s actual innocence.

 

If one of these circumstances is present, the convicted person can secure relief by filing a petition in the district court where he or she was convicted. The relief asks the court to set aside the actual judgment and attempt to discharge or resentence the petitioner, grant a new trial, correct the sentence, or make another disposition that would be appropriate.

 

Basically, if you have been convicted of a crime and are unable to appeal or have run out of appeals, you can try to get post-conviction relief to get the criminal charge changed, reduced, or vacated.

 

But what happens if you’re an immigrant facing deportation or issues with obtaining citizenship and permanent residency status due to a conviction?

 

Let’s find out.

 

Minneapolis Immigration Lawyer

 

Getting Relief for Immigration Purposes

 

If you are an immigrant who has been convicted of a crime and you are unable to obtain a waiver, you may want to try post-conviction relief.

 

As long as there is a constitutional or procedural issue with both the case and the conviction, the defendant can petition for post-conviction relief. If that relief is granted, then the crime can no longer be used in someone’s immigration case.

 

Criminal defense lawyers are required to tell immigrants about the risk of deportation associated with a guilty plea. If you will definitely be deported due to your crime, your attorney has to tell you that a conviction will result in deportation, not only that it might result. This was determined by the 2010 Supreme Court case Padilla v. Kentucky and may be able to be used as a removal defense in a post-conviction relief petition if your immigration attorney failed you in this duty.

 

How does this work? Let’s look at an example.

 

An immigrant petitions for post-conviction relief because he was convicted of a crime and he wasn’t told about the deportation provision of a guilty plea – or there were other constitutional or procedural mistakes.

 

If the court accepts the petition and decides to grant relief to the defendant and vacate the charges – or something similar – the conviction can’t be used to deport that person. In fact, it’s possible that he or she could go on to become a citizen.

 

Because immigration law is often complicated, if you are an immigrant and have been convicted of a crime here in Minnesota, you should reach out to an immigration lawyer to see how post-conviction relief might be able to help you.

 

 

About the Author:

 

Christopher Keyser is a Minneapolis-based criminal and DWI defense attorney known for fighting aggressively for his clients and utilizing innovative tactics to get the most positive results. He has been featured in numerous media outlets due to the breadth and depth of his knowledge, and recognized as a Minnesota Super Lawyers Rising Star (2014–2015), a Top 100 Trial Lawyer (2013–2015), and a Top 40 Under 40 Attorney (2013–2015).

 


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