Post-conviction relief in California is an essential legal tool for immigrants who have been convicted of certain crimes that may trigger deportation or otherwise affect their immigration status. Given the harsh immigration consequences of criminal convictions, individuals must be aware of the legal remedies available to vacate or modify these convictions. This blog will first explore the types of problematic convictions that lead to immigration consequences, then discuss various legal motions that can be used to vacate these convictions (California Penal Code Sections 1473.7, 1016.5, and 1203.43) and how these can be used to improve your immigration situation.
It is important to note that a motion to vacate is more than an expungement. Because expungements or deferred entries of judgment are not recognized under immigration law, it is important that problematic convictions be vacated. Below we have discussed the ways in which you can vacate a California conviction.
I. Problematic Convictions for Immigration Purposes
Certain convictions are particularly harmful for non-citizens because they trigger deportation, inadmissibility, or bar other immigration relief. These are the primary categories of problematic convictions:
1. Crimes Involving Moral Turpitude (CIMTs)
Crimes involving moral turpitude (CIMTs) are offenses that are considered to be inherently base, vile, or depraved. Common examples include:
- Theft crimes (e.g., burglary, robbery)
- Fraud (e.g., welfare fraud, insurance fraud)
- Crimes of violence (e.g., assault with intent to commit a felony)
A conviction for a CIMT can lead to inadmissibility or removal, depending on the timing and number of convictions.
2. Drug Offenses
Drug-related convictions are especially dangerous for immigration purposes, as they can render a non-citizen deportable or inadmissible. Even minor drug offenses, like simple possession, can have severe consequences. However, limited exceptions exist, such as a single conviction for possession of less than 30 grams of marijuana.
3. Aggravated Felonies
Aggravated felonies are one of the most severe categories of criminal convictions under U.S. immigration law. These include:
- Drug trafficking offenses
- Firearms offenses
- Certain violent crimes (e.g., rape, murder)
- Fraud or tax evasion with a loss of over $10,000
- Certain convictions with a term of imprisonment of one year or longer
Conviction of an aggravated felony can lead to mandatory deportation, barring any relief.
4. Domestic Violence and Related Offenses
Domestic violence convictions, as well as violations of protective orders or stalking, can result in deportation and inadmissibility. Even misdemeanor convictions for domestic violence can have harsh immigration consequences, including barring naturalization.
II. Legal Motions for Post-Conviction Relief
Non-citizens facing adverse immigration consequences from their criminal convictions can use various legal mechanisms to vacate or modify their convictions. The most common motions in California for this purpose are under Penal Code Sections 1473.7, 1016.5, and 1203.43.
1. Penal Code § 1473.7 - Motion to Vacate a Conviction Due to Immigration Consequences
This is one of the most powerful tools for post-conviction relief for non-citizens. Under this statute, a person can file a motion to vacate a conviction if:
- They were not aware of the immigration consequences of their plea or conviction, or
- There is newly discovered evidence of actual innocence.
Arguments to Succeed in a 1473.7 Motion:
- Failure to Advise of Immigration Consequences: A common argument under 1473.7 is that the defendant was not properly advised by their attorney about the immigration consequences of pleading guilty or no contest. This includes failing to inform the defendant that their conviction would result in deportation or inadmissibility.
- Prejudice: The defendant must also show prejudice, meaning that if they had known about the immigration consequences, they would not have entered the plea and would have chosen to go to trial or negotiate a different outcome.
- Ineffective Assistance of Counsel: A claim that the attorney provided ineffective assistance by failing to investigate the immigration consequences or by giving incorrect advice is a strong argument for vacating the conviction. Examples of this include when a criminal defense attorney tells their client that there will be no immigration consequences, or when a criminal defense attorney tells their client “not to worry” because it is a misdemeanor and not a felony.
- Reasonable Mistake in Understanding Immigration Consequences: A person mistake in understanding the immigration consequences, such as not knowing that the conviction would result in your deportation, may be grounds to vacate the conviction. However, this must be a “reasonable” mistake, and courts will look to the factors surrounding your conviction, such as your age and your understanding of the law and your status at the time of your conviction.
2. Penal Code § 1016.5 - Motion to Withdraw a Plea for Failure to Provide Advisement
California law requires that judges inform defendants of the immigration consequences of their plea under Penal Code 1016.5. The advisement must specifically state that a guilty plea will result in deportation, exclusion from admission to the U.S., or denial of naturalization.
Arguments for a 1016.5 Motion:
- Failure to Provide the Required Advisement: If the judge did not provide this specific advisement at the time of the plea, the defendant can argue that they were not aware of the immigration consequences, which invalidates the plea.
- Prejudice: As with 1473.7, the defendant must demonstrate that they would not have accepted the plea had they been fully aware of the immigration consequences.
- “May Have” versus “Will Have” Immigration Consequences: The California Supreme Court has held that the words “may have” in a section 1016.5 immigration advisement are not an adequate immigration advisement for defendants charged with serious offenses. In People v. Patterson, 2 Cal.5th at pp. 889, 895. In that decision, the Court held that Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal.”
3. Penal Code § 1203.43 - Motion to Vacate a Plea after Successful Deferred Entry of Judgment (DEJ)
For individuals who completed a Deferred Entry of Judgment (DEJ) program, Section 1203.43 provides a mechanism to vacate the conviction. Though the court originally dismisses the case after successful completion of DEJ, the conviction can still cause immigration consequences. Section 1203.43 allows a defendant to retroactively withdraw their plea, and the case will be dismissed "as if the plea was never entered."
Arguments for a 1203.43 Motion:
- Immigration Consequences Despite DEJ: The argument is that while the plea was supposed to be dismissed after completing the program, it is still treated as a conviction for immigration purposes. Vacating the conviction completely under 1203.43 eliminates this problem.
- Misinformation from the Court: Because many individuals sought a deferred entry of judgment based upon the statement in Section 1000.4 (PC 1000) that "successful completion of a deferred entry of judgment program shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate." Because the conviction remained valid for immigration purposes, California has found that this to be inaccurate and therefore constitutes misinformation about the actual consequences of making a plea in the case of some defendants, including all noncitizen defendants, because the disposition of the case may cause adverse consequences, including adverse immigration consequences.
III. "Reasonable Diligence" and the Timing of Post-Conviction Motions
A key issue in post-conviction relief is the concept of reasonable diligence, which generally refers to how promptly an individual acts after discovering the immigration consequences of their conviction. Courts may deny relief if the motion is not filed within a reasonable time after learning of the harm caused by the conviction.
- Prompt Filing After Awareness: It is crucial to file a motion as soon as possible after becoming aware of the immigration consequences or after any deportation or denial of immigration relief. Courts look favorably on those who act quickly.
- Explaining Delays: If there is a delay in filing, the individual must provide a valid explanation for the delay, such as not being aware of the consequences until recently, or not having access to proper legal counsel.
IV. Proving Prejudice
To successfully win a motion to vacate a conviction, especially under California Penal Code § 1473.7 or § 1016.5, you must demonstrate prejudice—meaning that the defendant was harmed because of a lack of proper advisement or ineffective assistance of counsel regarding the immigration consequences of a plea. Showing prejudice is a critical element of the motion and requires you to prove that, had the defendant known about the immigration consequences, they would not have accepted the plea bargain and would have made a different decision, such as going to trial or negotiating a better plea.
Here’s how you can establish prejudice:
1. Client's Personal Affidavit (Declaration)
The defendant must provide a declaration explaining that if they had known about the severe immigration consequences, they would not have pleaded guilty or no contest. The affidavit should include:
- Clear Statement of Unawareness: The defendant should explain that they were unaware of the immigration consequences of their plea at the time they accepted it.
- Willingness to Go to Trial: The affidavit should state that had they known the immigration consequences, they would have chosen to go to trial or seek a better plea agreement. Even if the risk of a longer sentence was present, the potential immigration impact would have influenced their decision. The affidavit can include:
- Statements about the importance of remaining in the U.S. with family or work.
- Concerns about deportation or removal if they had known at the time of the plea.
- Cultural or Personal Background: Highlight any factors that would show why immigration consequences were particularly significant to the defendant. For example:
- Long-standing family ties in the U.S.
- Dependents who are U.S. citizens.
- Deep community ties or employment in the U.S.
- The defendant’s background in their home country (e.g., fear of persecution or other hardships upon return).
- Immigration Neutral Dispositions: If an immigration neutral plea or disposition was available at the time of the plea, it is important to show the availability of this resolution and how it would not have immigration consequences. Arguing that an immigration safe disposition existed which would serve the same purpose for the prosecution is especially helpful.
2. Supporting Affidavits from Family or Friends
Declarations from family members, friends, or community leaders can help bolster the argument that the defendant would have done everything possible to avoid the conviction had they known about its immigration consequences. These affidavits can emphasize:
- The defendant’s strong connection to the U.S.
- The significant consequences the defendant’s deportation or inability to immigrate would have on their family (e.g., hardship for U.S.-citizen children, elderly parents, etc.).
3. Case Law on Prejudice
In motions under § 1473.7, courts have held that the defendant does not need to show a likelihood of acquittal at trial—they only need to demonstrate that, with proper advice about the immigration consequences, they would have opted for a different course of action.
- People v. Mejia (2019): The court emphasized that if a defendant can credibly show that immigration consequences were of paramount concern and they would have chosen trial or further negotiation rather than pleading guilty, prejudice can be established.
- People v. Camacho (2019): The court reiterated that the key issue is whether the immigration consequences were a major consideration, and if they had been properly informed, they could have pursued a better outcome.
4. Ineffective Assistance of Counsel (IAC)
If claiming ineffective assistance of counsel as part of the motion, it’s essential to show that the defendant’s attorney either:
- Failed to advise them about the immigration consequences of their plea (required under Padilla v. Kentucky), or
- Provided incorrect advice about the immigration consequences (e.g., telling the defendant that their plea would not affect their immigration status).
To demonstrate prejudice in an IAC claim, you must show that, had the attorney properly advised the defendant, they would have rejected the plea deal. Evidence of prejudice can include:
- Proof that the defendant or their attorney tried to negotiate a plea without immigration consequences.
- Emails, letters, or records showing that immigration consequences were a concern during the plea negotiations but were not properly addressed.
5. Analysis of the Plea Deal
Compare the plea bargain the defendant accepted with alternative options that could have been negotiated had immigration consequences been a priority. If a better plea option could have been negotiated to avoid deportation, that can be evidence of prejudice. For example:
- Less serious charges: Argue that a different charge without adverse immigration consequences was available but not pursued because the defendant was unaware of the importance.
- Alternative sentences: Point out that the defendant could have accepted a plea with different sentencing terms that would not trigger deportation, such as probation or deferred adjudication.
6. Immigration Consequences vs. Criminal Penalties
In the motion, emphasize that the immigration consequences (such as permanent separation from family, deportation to a dangerous or unfamiliar country) were far more severe than the criminal penalties (e.g., a short jail sentence). This supports the argument that any reasonable person in the defendant’s situation would have made a different decision had they known the full impact of the conviction.
- Comparative Analysis of Risks: Show that, given the magnitude of the immigration consequences, going to trial would have been a rational choice—even if it meant facing a longer sentence. This can be particularly compelling if the defendant had a viable defense or if the prosecution’s case was not overwhelming.
V. Using Vacated Convictions to Secure Immigration Relief
Once a conviction is vacated, it is no longer valid for immigration purposes. This opens the door to several immigration benefits, including:
1. Obtaining Permanent Residency (Green Card)
Vacating a conviction can make someone eligible to apply for a green card if they were previously barred by the conviction. For example, if a drug conviction or a CIMT was preventing someone from becoming a lawful permanent resident, successfully vacating the conviction can remove the barrier.
2. Naturalization (U.S. Citizenship)
Criminal convictions, especially aggravated felonies or CIMTs, can prevent someone from becoming a U.S. citizen. Vacating these convictions through post-conviction relief can restore eligibility for naturalization by eliminating the legal grounds that bar citizenship.
3. Eligibility for Relief from Removal
Vacating a conviction can make the individual eligible for relief from removal, such as eligibility for cancellation of removal, adjustment of status or asylum.
4. Reopening a Removal Order
If a non-citizen has already been ordered removed (deported) based on a conviction, vacating the conviction can form the basis for reopening their removal proceedings. Once the conviction is vacated, the individual can file a motion to reopen with the immigration court, arguing that the original grounds for removal no longer exist.
Post-conviction relief is a critical legal strategy for non-citizens in California who face immigration consequences due to criminal convictions. Understanding the types of problematic convictions and utilizing motions under Penal Code Sections 1473.7, 1016.5, and 1203.43 can help vacate convictions, potentially leading to permanent residency, citizenship, or reopening of removal orders. Acting with reasonable diligence and providing strong arguments based on ineffective counsel or failure to be properly advised about immigration consequences are essential for success. These tools provide a pathway for non-citizens to correct past mistakes and secure their future in the United States.