Tooby's California Post-Conviction Relief for Immigrants

(H)

Real Threat of Adverse Immigration Consequences.  The second element that must be shown to obtain relief is that "there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences."[347]  When a defendant can show that he has received a notice to appear for deportation proceedings based upon his conviction, and his deportation hearing has been scheduled, it is sufficient to establish that he faces more than a remote possibility of suffering deportation as a result of his conviction.[348]

            Meeting this requirement should not pose a problem for the vast majority of noncitizens, who would not even be bringing the motion unless they were in danger of adverse immigration consequences.  However, evidence that the noncitizen is a noncitizen, standing alone, is insufficient to meet the statutory standard.[349]  The defendant would have to show, for example, that the offense was a crime involving moral turpitude and that it had been committed within five years of admission in order to establish deportability under 8 U.S.C. § 1227(a)(2)(A)(i).

[347] People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio, supra, 23 Cal.4th at pp. 192, 199-200.

[348] People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 56 Cal.Rptr.3d 406, 409-410; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 202.

[349] People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 999 P.2d 686.