Overturning a Conviction through Due Process Considerations

Interviewer: Are there any exceptions to the rule?

Jeanne Morales: Number one is just not to get arrested and to play by the rules. Two, if you are arrested and you do have to make a plea bargain—make sure that what you’re pleading to won’t hurt your status. There are ways but it is very difficult to go back and try to undo your conviction.

It’s sometimes extremely difficult. There are a few due process considerations.  Pretty much the only thing beyond that that would help somebody is a presidential pardon.

Interviewer: What would it take to get the conviction undone?

The Prosecution Can Agree to Overturn the Conviction

Jeanne Morales: I can use the examples of two cases that I’ve worked on. One was a man who had the evading arrest by vehicle. I did not represent him at the criminal law stage. We ran a process all the way through the Texas State courts all the way up to the highest court in Texas for criminal appeals. That court is called the Court of Criminal Appeals, and didn’t get any success there. We had already instituted a federal lawsuit to try and get that conviction thrown out and ultimately, the prosecutor agreed to have the conviction overturned.

We ultimately closed our lawsuit. But because it was considered an aggravated felony and that requires mandatory detention in immigration until the cases resolved, the client spent 22 months in immigration detention before we obtained his release. That man was a permanent resident.

Lacking the Mental Capacity to Comprehend a Plea Agreement

Another case involved a permanent resident who was mentally challenged. He had been in the wrong place at the wrong time with some individuals and the police just arrested everybody. His public defender just pled him out on a possession charge.

The man does not have the mental capacity to understand what being in the wrong place in the wrong time was. He also wasn’t able to understand the legal process by which he was convicted. It was a drug possession charge and he spent over a year in immigration detention before. What we all ultimately had to do was go back to the state where he was convicted and have a trial on whether or not he was mentally competent to make that guilty plea.

We were ultimately able to reverse that conviction based on the fact that he was incompetent to stand trial. When we reversed the conviction, they released him from immigration detention. However, he spent over a year in immigration detention.

It Is Important to Remember There Is No Crime the Immigration Department Considers Minor

This is not something that should go, “I can plead guilty now and have it reversed later.”  Again, my advice is to stay on the right side of the law. That it should be somebody’s guiding light. There is no minor crime when it comes to immigration.

There is no, “Well, it’s just a joint.” If they do find themselves locked up, then not only contact a criminal attorney but to contact an immigration attorney and to not agree to a plea bargain until they have been advised fully of what their options are by the immigration attorney.

Once an Individual Is Naturalized, Immigration No Longer Applies to Them

Interviewer: What if they’re already achieved citizenship?

Jeanne Morales: Once somebody becomes a citizen, the immigration law doesn’t apply to them. That’s another reason why we tell people, “Well, that’s great. You have your green card and you’re a permanent resident,” but the word ‘permanent’, you shouldn’t rely on that. As soon as possible, while you still have a clean record, you should go ahead and naturalize, because once you’re naturalized, you’re a citizen, and immigration law does not apply.

Interviewer: How often do you encounter these types of cases in your practice?

Jeanne Morales: We have a constant stream of people who want to either obtain legal paperwork or save the paperwork they already have, save their status as a legal permanent resident. But they have been accused of committing a crime and they are finding out that it’s going to affect them daily.

There are times when that’s all we see is people one right after another after another where, again, every once in a while, there’s not a whole lot we can do. The vast majority, I would say, are people who had arrested once, who usually in their youth, thought it was no big deal. They thought this because not a whole lot went on at the state level. They finished up their probation, paid their fines, and now they’re realizing that that little crime is going to prevent them from obtaining, either obtaining or keeping their legal status.