Vacating A Criminal Plea
If you have a criminal conviction and were not advised of your immigration consequences and that conviction is now causing you to face removal proceedings or other immigration consequences and you are no longer in custody or on parole/probation, you can make a motion under Penal Code Section 1473.7 to have the plea vacated. The motion has to be brought before or within a reasonable time after the defendant gets a final removal order. If you are in custody or on parole/probation you can bring a writ of habeus corpus to challenge the conviction because you weren't advised of the immigration consequences of the plea.
Penal Code Section 1473.7 provides a vehicle for people who were improperly or negligently advised or not advised at all that the charge that they plead to would have immigration consequences, but who are no longer in custody, on probation or parole to have access to the courts. They can challenge the judgment on the grounds that their attorney failed to advise them of or to investigate the immigration consequences of the plea or to negotiate an immigration neutral plea. Penal Code Section 1473.7 relief can also be brought if you find new evidence of your innocence, like DNA, years down the road.
Defendants in this category: those who were not advised of the immigration consequences of their plea and suffer some negative immigration consequence from the plea make the motion pursuant to Penal Code 1473.7 in the same court where they were sentenced. They or their lawyer file a motion which alleges that their lawyer did not explain the immigration consequences, did not investigate the immigration consequences and/or did not negotiate an immigration neutral plea. The defendant needs to lay out in a declaration what they remember happened. The matter is then set for hearing and the DA has an opportunity to respond in writing prior to the hearing. At the hearing the DA usually calls the defendants' lawyer who represented them when the plea was entered who will usually testify that he doesn’t remember the case, but their practice is to advise immigration consequences. If they are able to appear the defendant will have to testify at the hearing that this did not happen, that if they had known the consequences they would have gone to trial and the DA will cross-examine them. The judge will then make a decision whether the defendant has established by a preponderance of the evidence (presents more evidence than the DA) that they were not advised, it was not investigated or an immigration neutral plea was not negotiated and whether the defendant suffered a negative immigration consequence.
If you are facing immigration consequences because of a prior plea and you were not advised of the immigration consequences of your plea, give me a call to discuss whether a motion to vacate the plea is something that we can make to help you out.