Vacating A Criminal Plea

By otmseo on August 24, 2020

If you have a criminal conviction and were not advised of your immigration consequences. And if you are now experiencing removal proceedings or other immigration consequences. You can make a motion under Penal Code Section 1473.7 to have the plea vacated. You have to make the motion 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.

What Is Penal Code 1473.7?

Penal Code Section 1473.7 provides a vehicle for people who were improperly advised by their prior lawyer. Or people who were negligently advised of immigration consequences. Or people who were not advised at all that the charge that they plead to would have immigration consequences to have access to the courts. They can challenge the judgment on the grounds that their attorney failed to advise them of the consequences. Or their prior lawyer failed to investigate the immigration consequences of the plea. Or that their prior lawyer failed 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.

How Do You Make a Penal Code 1473.7 Motion?

You or your lawyer make the motion pursuant to Penal Code 1473.7 in the same court where they were sentenced. The defendant files a motion which alleges that your prior lawyer did not explain the immigration consequences, did not investigate the immigration consequences and/or did not negotiate an immigration neutral plea. You need to lay out in a declaration what they remember happened. Your declaration needs to lay out how the prior lawyer failed to advised him of the consequences. Or he needs to lay out how the prior lawyer didn’t investigate the immigration consequences. Your declaration needs to lay out how the prior lawyer didn’t negotiate an immigration neutral plea.

The court then sets the matter for hearing. 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. He 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. 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 at 213-479-5322 to discuss making a motion to vacate the plea to help you out.

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