When someone chooses to plead guilty in a criminal case, the plea must be “knowing, intelligent, and voluntary.” This means they must understand the rights they are giving up in order to plead guilty, as well as the potential negative consequences of their plea. Included among the consequences that a defendant must understand is the potentially adverse impact that the conviction could have on their immigration status.
In today’s climate of increased immigration enforcement, California legislature has been proactive in seeking to address the issue of people facing deportation and other adverse immigration consequences as a result of guilty pleas, particularly in cases where the defendant was not properly advised regarding potential legal repercussions.
As of January 2017, Penal Code 1473.7 allows people who are no longer in criminal custody (which includes constructive custody such as probation or parole) to challenge old, unlawful convictions. A person can now file a motion to vacate their conviction on the grounds that the conviction “is legally invalid due to prejudicial error damaging the [defendant’s] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea.”
Notably, it does not matter how old the conviction may be, the motion under PC 1473.7 will be deemed timely so long as it is filed with “reasonable diligence” after the defendant “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 or the denial of an application for an immigration benefit, lawful status, or naturalization” and/or “notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence.”
This is a hugely important vehicle for non-citizens to challenge convictions where the noncitizen failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime. In the two years since PC 1473.7 went into effect, there has been confusion and often contradictory treatment of the statute, especially when determining if a court has jurisdiction to hear such a motion, and what must be shown to receive relief.
In order to clarify and implement the intent of the statute, the California Legislature amended the statute, effective January 1, 2019. The amendment states:
The bottom line is that if you are a noncitizen who has ever suffered a criminal conviction in California, you need to contact The Law Office of Francis Prizzia immediately. Our criminal defense attorney can determine if you are eligible for relief that could protect you from deportation and other adverse consequences.
Facing criminal charges? Is a prior conviction threatening your immigration status? Contact The Law Office of Francis Prizzia at (714) 362-0157 to arrange a case evaluation today.Categories:
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