Motion to Vacate Judgment (Penal Code § 1473.7)
If your lawyer failed to advise you of the immigration consequences of your plea and you are facing immigration consequences you can bring a motion to vacate judgment.
The cases of Padilla v. Kentucky (USSC) and People v. Soriano (CSC) both stand for the proposition that the lawyer for defendant must do four things:
- The lawyer must investigate the specific immigration consequences of a plea to that particular client.
- He must advise the client of the specific immigration consequences of their plea.
- Defense counsel must seek out and negotiate immigration safe sentences with the prosecutor.
- He must make sure his client knows the details of any deal or the impossibility of negotiating an immigration neutral disposition.
If counsel fails to do those things, they are not rendering effective legal representation. If successful, the motion allows for a modification of the sentence to satisfy ICE.
The motion is available to defendants who are no longer in jail, prison or on probation and parole. If the person is still in custody, they can get the same relief with a Writ of Habeus Corpus. The motion has to be made in a diligent manner after the person learns they are subject to removal.
The defendant lays out in a declaration how the lawyer who represented him at the time he took the plea failed to do one of the four things listed above. The DA can respond and there is usually a hearing where the prior counsel is called to testify. Simply showing that the Penal Code 1016 immigration advisement was read is usually not enough.
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