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New State Law May Offer Relief to Immigrants Who Plead Guilty to a Crime and Now Face Deportation

During the first 100 days of the Trump presidency, ICE arrested over 40,000[1] individuals across the country. It was a show of muscle against so-called “bad hombres,” Trump’s rallying cry during the campaign to justify cracking down on illegal immigration. Today, authorities continue to conduct massive sweeps and targeted raids, and pick up individuals with year-old criminal convictions—even misdemeanor offenses—or no criminal histories at all,[2] other than being undocumented.[3]

Now, in California at least, there is a form of potential relief for non-citizens (undocumented individuals, lawful permanent residents or “green card” holders, including asylees who have not adjusted their status, yet) whose state criminal conviction caught the attention of ICE and is the basis of the removal or deportation proceedings.

Penal Code, 1473.7, enacted this year, may provide a way to vacate, or cancel your conviction or sentence if you:

  1. Received a Notice to Appear in immigration court or have a date for your removal;
  2. Have a State criminal conviction or sentence on your record;
  3. That conviction was based on entering a guilty plea or a plea of nolo contendere;
  4. At the time of your plea – this is important -- you had NO idea, NO knowledge of the immigration consequences of the conviction, because your lawyer and or the court failed to advise you of the consequences or provided misinformation;
  5. Had you known of the adverse immigration consequences, such as deportation, you would not have entered your plea;
  6. The criminal conviction is the reason why ICE found you, and you are now involved in immigration removal proceedings or have an order for removal; and
  7. You are no longer imprisoned or restrained in state or county facilities for your conviction.

However, the statute does not require that a notice to appear or removal order be filed before an individual can seek this type of relief, according to the Immigrant Legal Resource Center.[4] As almost a pre-empted measure, individuals applying for a green card, naturalization, or other immigration benefit can also file a 1473.3 motion to vacate a conviction.[5]

The law provides, as relevant to non-citizens[6]:

(a) A person no longer imprisoned or retrained 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 [. . .]

(b) A motion pursuant to paragraph (1) or 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.

(d) All motions shall be entitled to a hearing. At the request of the moving party, the court may hold the hearing without the presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.

(e) When ruling on the motion:

(1) The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a).

(2) In granting or denying the motion, the court shall specify the basis for its conclusion.

(3) If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea.

(f) An order granting or denying the motion I appealable under subdivision (b) of Section 1237 as an order after judgment affecting the substantial rights of a party.

According to the Legislative Counsel Digest, this form of post-conviction relief sought to create an explicit way for non-citizens to preserve their due process right against a conviction or sentence based on a prejudicial error “damaging a 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”[7]

Due process requires that a guilty plea must be made voluntarily and intelligently.[8] A plea with those qualities presupposes the defendant knows of all the “direct consequences” of his plea.[9]

Seeking relief under Penal Code § 1473.3 involves filing a Motion with the Superior court where you were convicted. In the Motion, you will need to prove by the preponderance of the evidence why you are entitled to vacate your conviction. Case law on this penal code is limited right now because it is new, and it remains largely unclear how federal immigration authorities will respond or have responded to a vacated conviction under this penal code. Federal immigration judges have significant discretion in removal decisions.

The attorneys at Coimbra Law Firm, APC, can help devise a strategy for relief under Penal code § 1473.3 with the goal of getting you out of immigration court and away from the threat of deportation. Call us today at (626)340-2326.


[1] Erin Banco, Immigrants in Trump’s America now deported for running a red light, NEW

SWEEK MAGAZINE, available at http://www.newsweek.com/trump-bad-hombres-ice-immigration-636830

[2] Kate Wells, Recent ICE raids and looming deportations: like a “police state,” attorney says, Michigan Radio, July 9, 2017, available at http://michiganradio.org/people/kate-wells

[3] As generally understood, it is not a crime for a removable alien to remain in this country. Arizona v. U.S., 132 S.Ct. 2492, 2505 (2012).

[4] ROSE CAHN, HOW TO USE NEW CALIFORNIA LAW PENAL CODE 1473.7 TO VACATE LEGALLY INVALID CONVICTIONS, IMMIGRANT LEGAL RESOURCE CENTER (Oct. 2016), available at https://www.ilrc.org/sites/default/files/resources/1473.7_practice_advisory.pdf

[5] Id.

[6] Penal Code 1473,7 also provides relief for individuals who have come across new evidence sought to prove actual evidence; this second prong applies to any individual and is not limited to non-citizens. The penal code at 1473,7(a)(2) provides a means to vacate a conviction or sentence if “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interest of justice.” Penal code 1473.7(c): “A motion pursuant to paragraph (2) of subdivision (a) shall be filed without due delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.”

[7] Legislative Counsel Digest for AB 813, California Legislative Information

[8] Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)

[9] People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481