By Shellsea Lomeli
RIVERSIDE – A non-citizen—who claims he was unaware of the immigration consequences of entering a guilty felony plea seven years ago—is now asking a Riverside County Superior Court judge for help to avoid deportation.
Tougher immigration policies from the Trump Administration have increased the threat of deportation toward the undocumented, especially those involved in the criminal justice system.
In the U.S., a non-citizen with a felony conviction is usually not eligible for relief from deportation, as it prevents these individuals from being able to apply for permanent residence in this country.
With 94 percent, or more, of state cases ending in plea bargains, if non-citizens want to avoid the immigration consequences that come with a felony conviction, they must take extra precautions when plea bargaining to avoid the threat of deportation.
Jesus Ochoa Beltran entered a guilty plea in 2013 to a felony drug charge after an Indio Police Dept. officer searched his vehicle on a traffic stop and found an undisclosed amount of illegal substances.
According to Riverside court records, the 38-year-old has not had any other criminal charges or convictions besides the drug felony.
On Monday of this week, Beltran, a father of two U.S. citizens, asked the Riverside Superior Court to vacate the felony conviction in hopes of becoming a permanent resident.
“He was ignorant of the immigration case,” stated the defendant’s attorney, arguing that, in 2013, Beltran did not receive proper advice from his attorney at the time.
The former attorney’s affidavit, a written statement under oath, claimed that she did not have any recollection of Beltran’s case and therefore could not testify to what legal advice she had given her former client.
The representative from the district attorney’s office argued that the affidavit could not be used as evidence because of that attorney’s lack of memory of the case.
In response to Beltran’s request, Judge Burke Strunsky notified the defense that all individuals entering a guilty plea are reminded by the court that it may result in immigration consequences based on the defendant’s legal status.
“Going into the courtroom, he [Beltron] was nervous,” the current defense attorney said, noting that nerves prevented Beltron from understanding what was being told to him in court, and therefore, he relied on the advice of his counsel who allegedly failed to advise him on the immigration consequences.
The defense attorney continued, insisting that Beltron would not have pleaded guilty if he truly understood the risks because he had two children in the U.S. and did not want to be deported.
“In 2019, he was trying to legalize his status. He still cannot apply to get his permanent residence and that was due to his ignorance at the time,” said Beltron’s attorney.
“Based on President Trump’s executive order, ICE may reopen cases where an alien was convicted of a crime that contains illegal substances,” the defense attorney added, emphasizing the urgency for the felony drug conviction to be vacated.
While Judge Strunsky did not consider the former lawyer’s declaration, he did question Beltron and his former counsel’s intentions to avoid deportation risk in 2013 by pointing out that the word “cocaine was stricken from the case.”
“Someone created a legal fiction for a purpose. Was it for Prop. 36 or to avoid immigration consequences? Those are the two reasons that come to my mind for the strike of the word cocaine,” stated Judge Strunsky.
California’s Proposition 36, also known as the Substance Abuse and Crime Prevention Act, provided community-based alternatives to incarceration for nonviolent drug offenses.
Judge Strunsky ruled that the lack of details from Beltron’s case in 2013 was preventing him from deciding to grant or deny the defendant’s motion to vacate his prior conviction. He took the matter under advisement, and will notify the parties within the next two weeks.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9