08 Apr Reducing Criminal Convictions for Immigration Relief

To reduce a criminal conviction or sentence for immigration purposes, the specific legal “case” or motion you file depends on your current status (in custody or out) and whether you are trying to change the sentence length or the nature of the conviction itself.
Under federal immigration law, a sentence of 365 days often triggers “Aggravated Felony” status, which leads to mandatory removal. Reducing it to 364 days (or less) can be the difference between staying in the U.S. and being deported.

1. Motion to Modify Sentence (Penal Code § 18.5)
   In California, PC 18.5 was specifically designed to help immigrants.

• The Law: It defines the maximum sentence for any misdemeanor as 364 days instead of 365.
• The Strategy: If you were sentenced to 365 days for a misdemeanor, you can file a motion to have the court retroactively reduce the sentence to 364 days.
• Limitation: While California law says this is retroactive, some federal immigration courts (the BIA) have resisted applying it to convictions that happened before 2015. However, it remains a primary tool for current and recent cases.

2. Motion to Vacate Conviction (Penal Code § 1473.7)
This is often considered the “gold standard” for non-citizens facing removal.

• Purpose: To vacate (erase) a conviction because of a “prejudicial error.”
• The “Error”: The most common error is that your original defense attorney failed to advise you that your plea would result in deportation, or you did not “meaningfully understand” those consequences.
• Eligibility: You must no longer be in criminal custody (not in jail or on active probation/parole).
• Outcome: If granted, the conviction is wiped out. You then usually negotiate a new “immigration-safe” plea with the prosecutor that carries a sentence of 364 days or less and isn’t classified as an aggravated felony.

3. Motion to Reduce Felony to Misdemeanor (Penal Code § 17(b))
If your conviction is a “wobbler” (a crime that can be either a felony or a misdemeanor):

• How it works: You file a 17(b) motion asking the judge to exercise discretion and reclassify the felony as a misdemeanor.
• Benefit: This can lower the maximum potential sentence and change the classification of the crime, which may help avoid “aggravated felony” triggers.

4. Motion to Vacate for Ineffective Assistance (Habeas Corpus)
If you are still in custody (including probation):

• You may file a Petition for Writ of Habeas Corpus.
• You must prove your constitutional rights were violated—typically that your lawyer gave you “ineffective assistance” by not fighting for a 364-day sentence or a different plea that would have avoided immigration trouble.

Immediate Next Steps

1. Obtain your “Certified Record of Conviction”: You will need this from the courthouse where you were sentenced.
2. Consult a “Crimmigration” Expert: Standard criminal lawyers often don’t understand the nuance of 364 vs. 365 days. You need an attorney who specializes in the intersection of criminal and immigration law.
3. Act Quickly: If you have already received a Notice to Appear (NTA) in immigration court, you must notify your immigration judge that you are seeking “post-conviction relief” in state court to pause the removal proceedings.

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If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse, which could lead to deportation and family separation.

Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He has practiced immigration law, bankruptcy, and income tax representation since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net Website: www.crispinlozanolaw.com/ with offices in Hayward and Cerritos, CA.