Non-citizens, including lawful permanent residents, can experience profound immigration consequences for even minor or very old criminal convictions. Prior to 2017, California law only allowed defendants to challenge their conviction while they were in actual or constructive custody, i.e. parole or probation. As a result, countless people were left with no recourse and way of challenging their convictions. This gap has had a particularly devastating impact on the state’s immigrant community.
Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.
Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.
A PC 1473.7 motion to vacate can be filed on two grounds: (1) if a prejudicial error had occurred, which damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence, or (2) if evidence of actual innocence had been discovered. Notably, the prejudicial error ground for filing a successful motion to vacate does not require a finding of ineffective assistance of counsel. Moreover, in order to establish prejudice, the moving party does not have to prove that he or she would have obtained a more favorable result in the absence of the error.
PC 1473.7 includes a timing requirement that such motions be filed with “reasonable diligence” after receiving a notice to appear in immigration court, other notice from immigration authorities, or after a notice of final removal order, whichever is later.
All PC 1473.7 motions are entitled to a hearing, and if the moving party successfully establishes by a preponderance of the evidence that he or she is entitled to a relief, the motion will be granted, and the conviction will be vacated and erased from the person’s criminal record. However, that does not guarantee that the case will be dismissed. The case will only be dismissed, if the prosecution agrees to dismiss it. In the alternative, the prosecution may offer a different plea, and if not, the case will proceed to trial.
If an individual has a criminal record, obtaining a permanent legal status or citizenship is extremely difficult, if not impossible. At the Justice Firm we fight zealously to protect our clients’ rights and we believe that everyone is entitled to the opportunity to build a better future.
If you or a loved one is facing criminal charges, or needs assistance with a post-conviction relief, our highly skilled and compassionate attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.