How Can an Immigration Attorney Assist with Prior Convictions That Are Affecting Immigration Status?

Interviewer: When you are working with clients in an attempt to overturn their convictions, do you often negotiate the charge to a lesser offense that is not a felony?

Jeanne Morales: The goal is to prove to the prosecutor that the client didn’t do it or if that’s not going to happen, then to try and offer to plead to something that doesn’t fall into one of the deadly categories. We do research for the client. There are, in some cases, waivers available.

However, that option is becoming rare most of the time for people with old convictions. If the conviction happened before 1996, there’s an old waiver that still exists. But you have to dig for it and you have to see if they qualify. Those waivers might not be available for someone who was convicted within the last three years.

How Likely Are Judges to Grant Conviction Overturns When an Individual’s Immigration Status Is in Jeopardy?

Interviewer: Do the judges know the impact for your client in these situations? Are they aware of that first of all? Second of all, if you present another option to them, would they be inclined to change it?

A Judge May Grant the Motion Based on Sympathy but Immigration and Homeland Security Still View the Offense as a Conviction

Jeanne Morales: If you find a sympathetic judge and go to him and say, “My client was convicted five years ago of this. Now it’s totally affecting his immigration status. Can you retroactively go back and change it?”

If you were to find a judge that was sympathetic and said, “Yes,” immigration may not accept that. There have been cases where immigration was able to prove that the only reason the judge overturned the conviction was because he felt sorry for the person and he didn’t want to affect his immigration status.

Convictions Have to Be Overturned on Legal Grounds

As far as Immigration and the Department of Homeland Security are concerned, that’s still a conviction. You have to have the conviction overturned on other grounds. An example is the gentleman who had his conviction overturned because he was legally incompetent to plead guilty at that time.