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Our country is a nation of immigrants and is the best country in the world for that reason. Yet, immigrants convicted of criminal offenses can face draconian consequences, even for offenses that may be considered minor by the general public or even by those in the legal community who do not fully grasp the labyrinthine immigration system. The result is that attorneys who fail to learn of their client’s immigration status, or fail to properly fight against a resolution that may result in a severe immigration consequence, may set their immigrant clients up for removal or denial of admissibility if a case is not effectively handled,. For immigrant defendants  who are seeking asylum, in the US on a green card or lawful visa, or are undocumented such as the DACA/Dreamers, this may mean exile from the United States to a land where they are far away from their family and support network, they know very little about, and/or their lives may be in danger. However, a recent statute effective in California starting last January 2017 has created a form of relief that may help immigrants convicted of such crimes get a second chance at staying in the US.

Effective January 1, 2017, California enacted a new form of relief under Penal Code section 1473.7 for immigrant defendants who have been convicted of crimes resulting in negative immigration consequences, if one of two possible circumstances surrounding their plea of No Contest or conviction exists:

(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:

(1) The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.

(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

Cal. Penal Code § 1373.7(a).

In making the motion to vacate permitted under Penal Code section 1473.7, the moving party is entitled to a hearing as to its merits, with the standard of proof placed on the moving party being a preponderance of the evidence that he or she is entitled to the relief specified in Penal Code section 1473.7(a). Cal. Penal Code § 1373.7(d), (e)(1).  The new statute indicates that the magistrate ruling on the motion to vacate must specify its reasons on the record for granting or denying the motion. Cal. Penal Code § 1373.7(e)(2). “If the court grants the motion to vacate a conviction or sentence obtained through a plea of  . . .  nolo contendere, the court shall allow the moving party to withdraw the plea.” Cal. Penal Code § 1373.7(e)(3). The magistrate’s ruling on the issue of the motion to withdraw the plea, further, is appealable under Penal Code section 1237(b). Cal. Penal Code §§ 1237(b), 1373.7(f). The Defendant can then seek to have the prosecutor dismiss the case in the interests of justice or negotiate a resolution that does not carry severe immigration consequences.

If relief is sought by a party under the premise that they failed to meaningfully understand, defend against, or knowingly accept potential adverse immigration consequences of a plea of No Contest, the new statute specifies that the timing  of the motion in order to be eligible for the relief:

(b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following:

(1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal.

(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

Cal. Penal Code § 1473.7(b).

If an immigration judge’s order of removal is appealed, it is not considered “final”, as the regulatory definition of a “final” order provides that, except when certified to the Board of Immigration Appeals, the decision of the Immigration Judge becomes final “upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.” 8 C.F.R. §1003.39 .

The timeliness provision under Penal Code section 1473.7(b) requires that the defendant be made aware that “the conviction” in the case in which relief is sought is the basis for the removal. Cal. Penal Code § 1473.7(b). Further, it has been determined that the statute under Penal Code section 1473.1(a) is not limited to prospective applications only, and may be applied retroactively, wherein a court “needs to evaluate whether a moving party satisfies the required elements to bring a motion under the statute.”  People v. Modesto Perez __Cal.App.4th__, slip op’n at 14 (filed January 15, 2018, Fourth District, Division One). This includes a review of the timeliness provisions described by Penal Code section 1473.7(b). Id., slip op. at 14-15; Cal. Penal Code § 1473.7(b).

Relief under Penal Code section 1473.7 usually involves a defendant who was not accurately advised of the negative immigration consequences or did not understand the consequences because their attorney did not effectively seek to prevent the negative immigration impact at the time of plea, or advised going to trial when a resolution that would have avoided the negative consequences was on the table. Language problems in communicating with one’s attorney about the case have been common in these situations as well. Furthermore, relief is available if new evidence proving innocence exists and can be demonstrated to the court.

If you believe that you or a loved one is facing negative immigration consequences due to a conviction that involved an inability of the party to “meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences” of the plea, or if you were convicted and there is new evidence proves that the party was actually innocent of the crime, you or your loved one may be eligible for relief and need an experienced attorney on your side to advocate for your rights in this complex area of the law. Contact Honeychurch & Giambona today for a free consultation to determine if your case is eligible for relief and how we may be able to effectively assist you in vacating a wrongful conviction resulting in negative immigration consequences on your behalf.


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