Best Legal Options for Immigrants with Criminal Records in Michigan

Your past doesn't disappear when you move to a new country. It shows up many times down the road. This includes at the border, in USCIS (US Citizenship and Immigration Services) interviews, and sometimes, in the form of a court record you thought was forgotten. 

The good news, however, is that the Michigan judicial system offers more than fear. You get various legal defenses, strategic pleas, rehabilitative programs, waivers, and post-conviction options you can explore. 

If you're an immigrant in Michigan with a criminal record who's fearing serious immigration consequences of criminal convictions, including deportation, this is for you. Mark Linton, a prominent Michigan appeals attorney, celebrated for numerous immigration wins, provides a clear and practical guide.

He explains the rules you'll find in a Michigan courtroom. He also covers important cases and laws. These provide the best legal options for immigrants with criminal records in Michigan. 

Quick Summary: Immigration Criminal Record Options in Michigan

If you’re an immigrant with a criminal record in Michigan, you may still have legal options. This article explains expungement, appeals, post-conviction relief, and immigration-safe strategies that may help reduce deportation or immigration consequences.

Understanding Immigration Criminal Record Risks in Michigan

This should be your starting point. Michigan criminal law is quite a different system from immigration law. And this means you may secure a win in state court and think it'll automatically be the same for the immigration authorities. However, the win may not protect you from immigration consequences.

The U.S. Supreme Court holds that defense attorneys must advise non-citizen clients about deportation risks tied to pleas, as per the Padilla v. Kentucky (2010) case ruling. And if your plea lawyer gave wrong or no advice, that can be the basis of an ineffective-assistance claim.

Actionable step to take: Consult both a criminal immigration advocate and an appellate advocate. And if you can't afford one, ask the court or public defender about immigration-competent counsel or local immigrant-defense clinics.

Set-Aside (Expungement) is the Fastest, Most Visible Fix

Michigan's set-aside statute, Act 213 of 1965, lets eligible people ask a court to set aside their convictions. When granted, these people are considered “not to have been previously convicted.” And this serves many purposes, including immigration. The Michigan Compiled Laws (MCL) 780.621 and the sections that follow dictate the rules for this option.

The Clean Slate law and recent amendments expanded eligibility for many misdemeanors and up to three felonies in a lifetime. However, there are exclusions for certain offenses, like some sex and trafficking offenses. 

A set-aside statute can remove or reduce the evidence of conviction that immigration authorities use. However, it's not a guaranteed bar to immigration consequences. This is because some federal immigration rules can treat a prior conviction differently, regardless of state set-asides.  

Nonetheless, a Michigan set-aside is often the single most effective state-law tool for reducing risk. It's also perfect for fixing employment, housing, and licensing problems.

Actionable steps to take: Check your eligibility under MCL 780.621 and the Clean Slate guidance. Also, order your case record and a copy of the judgment, as courts expect a full picture when you file. If you're eligible, file the set-aside application and be prepared to show rehabilitation and restitution compliance if asked.

Motion for Relief from Judgment 

Maybe you missed the appeal window, or you have claims like ineffective assistance of counsel (including Padilla-based claims), newly discovered evidence, or plain procedural or constitutional defects. You can file a motion for relief from judgment (also called a 6500 motion) under Michigan Court Rules (MCR) 6.502.

Michigan rulemaking and the Supreme Court make it clear that MCR 6.502 doesn't contain a filing deadline. And motions can be considered even many years after conviction in the right circumstances. This is in accordance with the People v. Suttles (2020) case ruling. This case opened doors for many Michigan post-conviction claims that were previously dismissed as untimely.

Actionable steps to take: Ask your appellate lawyer to evaluate whether an MCR 6.502 motion can be filed. And if your counsel was ineffective at the plea stage, document what was said and when. Counsel being ineffective means they failed to warn you of deportation risks. And the Padilla ruling gives this ineffective assistance claim weight in both federal and state courts.

Appeals and Deadline Realities 

An appeal may be quicker than a post-conviction motion if you're still within the standard times. For criminal cases, a claim of appeal in an appeal of right is commonly due within 42 days of the judgment or order being appealed. In civil cases, you have a 21-day timeline. This is outlined in MCR 7.204 and Michigan Court of Appeals guidance.

If you pleaded guilty, you work with an application for leave to appeal, which comes with a different timing. Ideally, there's a six-month window for applications for leave to appeal in criminal matters (if you can show good cause for the late filing). If you miss any of these deadlines, you bar the review of your case.

Actionable steps to take: If you're within 21 to 42 days of sentencing, contact an appellate lawyer immediately. And treat it like an emergency. This is because transcripts must be ordered and appeal docketed quickly. And if you've already missed the standard appeal window, an MCR 6.502 motion is the best option.

Ginther Hearings for When You Need Evidentiary Records About Your Lawyer

Claims of ineffective assistance of counsel in Michigan allow you to ask the trial court for an evidentiary hearing to develop the case record. This hearing is called a Ginther hearing, which comes from the People v. Ginther (1973) case. 

A Ginther hearing allows you to call witnesses, including your prior defense attorney. And they can help you prove that your counsel's performance was deficient and prejudicial. The hearing can be decisive in proving a Padilla-type claim. This is especially the case for immigrants who say their lawyer failed to warn them about deportation possibilities or mishandled plea choices.

Actionable steps to take: Ask your counsel to request a Ginther hearing in conjunction with an MCR 6.502 filing, especially when the claim requires live testimony. Also, prepare declarations or contemporaneous notes (notes documenting an event as it happens or immediately after the event) from you or any witnesses you have. And these witnesses should recall what your counsel said about your immigration consequences.

Migration Remedies After a Criminal Record

As earlier mentioned, federal immigration agencies like the ICE (Immigration and Customs Enforcement) and USCIS make their own determinations of whether you should be deported or not. This is despite the success of your state set-aside or post-conviction relief. And depending on the conviction, there are several remedies at your disposal. These include:

Cancellation of Removal

This relief is available for non-permanent residents but is highly discretionary. It also has strict eligibility requirements, such as continuous physical presence and a showing of exceptional hardship. Plus, it's considered rare and challenging to obtain.

Asylum/Withholding 

If removal from the United States would expose you to persecution or torture in your home country, these two forms of relief may be available. Although they're decided through specific processes involving asylum officers and immigration officers.

Waivers of Inadmissibility/Deportability

Waivers of inadmissibility and deportability are legal mechanisms available at the discretion of immigration authorities. They allow an individual who is otherwise barred from entering or remaining in the U.S. to request forgiveness for specific violations. These waivers are useful for immigrants facing removal or seeking lawful status. 

There are different types of waivers, and the specific forms used depend on the situation. They include:

Form I-601 - This is used to apply for a general waiver of inadmissibility for various grounds. It's typically filed after you've been found inadmissible by a consular officer abroad or while in removal proceedings. 

Form I-601A - This is a temporary waiver for unlawful presence. It allows eligible individuals to apply for the waiver while still in the United States. They can do it before leaving for their visa interview abroad. And this reduces family separation time.

Form I-212 - This waiver is used to seek permission to reapply for admission after having been previously removed or deported. 

If your past keeps showing up as an uninvited witness in every chapter of your life, it's time to bring someone who knows how to silence it. And Mark Linton does exactly that. He's the Michigan appellate attorney people call when staying in the U.S. isn't a hope, but a need. Contact Mark Linton today to stop letting old paperwork speak louder than your real life and reclaim the ground beneath your feet.