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.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

Second, in line with section 1016.3 of the California Penal Code, which requires that in all plea negotiations, the prosecution has to consider the avoidance of adverse immigration consequences as a factor in reaching a resolution, the new directive makes clear that “it is in the interest of justice to endeavor to avoid or mitigate immigration consequences of criminal convictions whenever possible.” Accordingly, the new directive lays out a comprehensive plan for plea bargaining, including:

• Allowing for flexibility in sentencing, including splitting sentences across counts, as well as flexibility in sentencing for a probation violation; and
• Avoiding sentence enhancements that would turn a neutral offense into an immigration damaging one.

Furthermore, the new directive lays out the Office’s policy on post-conviction relief. In 2016, the California legislature passed section 1473.7 of the California Penal Code, which created a vehicle for noncitizens, who are no longer in criminal custody, to seek post-conviction relief by allowing them to move to vacate prior convictions when there is 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 conviction or sentence.” In accordance with this, the new immigration policy directs prosecutors to concede without delay all motions to vacate, where it is clear from the record that a defendant was not able to comprehend, defend against, or knowingly accept the immigration consequences of a plea or a sentence.

Moreover, the new policy lists several type of cases in which it can be expected that a motion to vacate would not be opposed by prosecutors. These cases include:

• Motions to bring a sentence down from 365 to 364 days;
• Proposition 36 cases, where the defendant has completed the drug treatment diversion program;
• Post-plea deferred entry of judgment cases;
• Marijuana cases, which have been dismissed as part of the mass cannabis record clearance;
• As well as cases where the defendant has been in the military and has been honorably discharged.

In general, the new policy makes clear, that regardless of the type of case, in all motions to vacate based on immigration consequences, prosecutors should consider all mitigating factors, including whether the defendant was a juvenile; how old the conviction is; the severity of the crime and the facts of the case; as well as the defendant’s character, including family history, work history, and contributions to the community. And, in cases where it is determined that a different resolution would have been reached, if the adverse immigration consequences had been raised initially, the prosecution should stipulate to a motion to vacate.

At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and we work hard for all of our clients to achieve the best outcome possible.

If you or a loved one is facing criminal charges, or is seeking post-conviction relief, or needs help with any criminal matter, our highly skilled and reliable 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.