A New California Law Will Make It Easier For Immigrants To Cure The Harsh Immigration Consequences Of Their Criminal Convictions
Effective January 1, 2017, a new California law will ease the requirements for immigrants seeking to vacate their criminal convictions on substantive grounds. Under California Penal Code section 1473.7, non-citizens will be permitted to file a motion to vacate a conviction or sentence based on either one of two claims: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or (2) newly discovered evidence of actual innocence. The statute permits individuals to file motions to vacate in situations where prior defense counsel failed to properly advise the defendant regarding the specific immigration consequences of the plea and/or failed to defend against the immigration consequences of a given plea by seeking an immigration-safe disposition.
Although California law has for years imposed a duty on criminal defense attorneys to advise their clients regarding the specific immigration consequences of a plea[i], a substantial legal barrier impeded defendants who received bad legal advice from challenging the validity of their convictions based on the ineffective assistance of their criminal defense attorneys. In 2009 the California Supreme Court held that defendants could only raise claims of ineffective assistance of counsel in a petition for writ of habeas corpus.[ii] The problem with the Court’s decision is that such petitions have traditionally required a petitioner to be in actual or constructive custody. Because many immigrants did not learn of the drastic immigration consequences of their pleas until many years after their convictions (and therefore after being released from custody), they could not satisfy the custody requirement for habeas corpus. Thus, for many non-citizens seeking to challenge their convictions based on ineffective of counsel, post conviction relief was often not an option. Section 1473.7 however specifically allows a motion to be filed whether or not the individual is in custody, therefore potentially extending post conviction relief to many defendants who would not have qualified before.
If you believe that you might qualify for post conviction relief under section 1473.7, it is imperative that you consult with an attorney as soon as possible as the statute requires individuals to act with “due diligence” in filing under this section.
The information contained in this blog is not intended to constitute legal advice for any individual case or situation. This information is general and should not be relied on for any specific case. In order to obtain advice concerning your specific situation, contact an experienced immigration attorney for a personal consultation.
[i] See Padilla v. Kentucky, 559 U.S. 356 (2010); People v. Soriano, 194 Cal.App.3d 1470 (1987); In re Resendiz, 25Cal.4th 230 (2001); People v. Bautista, 8 Cal. Rptr. 3d 862 (2004); Cal. Pen. C. §§1016.2, 1016.3.
[ii] See People v. Kim, 45 Cal.4th 1078 (2009).
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