Vacate & Remove California Criminal Convictions to Avoid Deportation

There are certain criminal offenses that are categorized as grounds for deportability, inadmissibility, or denial of naturalization in the United States.  These include crimes of violence, crimes designated as “aggravated felonies” (such as sexual abuse of a minor), and crimes designated as crimes of “moral turpitude” (i.e., any crimes involving lying or deceit such as fraud and theft).  The law requires that you be fully advised of the immigration consequences of an offense before pleading to it.  In other words, your attorney has to fully advise you that conviction for the particular offense may have the consequences of deportation, exclusion from admission, or denial of naturalization.  In addition, the court has to explicitly advise you on the record of these immigration consequences.  If the court fails to do so and/or if your attorney does not advise you adequately, you are presumed not to have been properly advised and as such you are entitled to the withdrawal of your plea.  The appropriate procedure for this type of relief is vacate or set aside your conviction via filing a motion to vacate.   You can file a motion to vacate on one or two of the following grounds:

A) The court failed to adequately advise you on the record, in violation of Penal Code Section 1016.5; and

B) Your attorney failed to adequately advise you in violation of Penal Code Section 1437.7

Let’s take a closer look at these grounds for post conviction relief.

VACATING OR SETTING ASIDE A CONVICTION UNDER PENAL CODE SECTION 1016.5

The Law

Penal Code 1016.5 requires that before accepting a guilty plea to any criminal offense, the trial court must advise the defendant on the record that if he or she is not a United States Citizen, conviction of this offense may result in deportation, exclusion from admission to the United States, or denial of naturalization.  In that same respect, the statute allows the defendant to move to vacate a judgment if the trial court fails to give the required advisements.

Code section 1016.5 allows the Defendant to move to vacate the judgment if the trial court fails to give the required advisements, providing in pertinent part:

“If, after January 1, 1978, the court fails to advise the defendant as required by this section and the Defendants shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the Defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on Defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.  Penal Code section 1016.5 (emphasis added)

The section also provides:

Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.

Thus, at a minimum, you must be advised of all three possible consequences of your plea—deportation, exclusion from admission, or denial of naturalization.  If these three consequences are not specifically articulated, the advisal is insufficient and the Court has not complied with section 1016.5.  In that scenario, you are entitled to a presumption that you have not received the required advisement.  If the prosecution is unable to rebut this presumption, then the court must vacate the judgment and allow you to withdraw your plea.  Your attorney and the prosecutor can then agree to allow you to plead to an alternative charge that does not subject you to any immigration consequences.  

Consider the following examples:

In 1993, James is convicted of transporting a controlled substance in violation of Health and Safety Code Section 11352.  James moves to vacate this conviction. According to a transcript produced by the prosecution, the judge on the record advised James as follows: “conviction for this offense might render you deportable, prevent you from reentering the United States, or deprive you of citizenship.” James argues that this advisement was insufficient because it did not mirror the exact language of Penal Code section 1016.5.  James will not prevail on his motion to vacate because courts have held that substantial, not literal, compliance is required under the statute mandating a trial court to advise a defendant of immigration consequences before accepting guilty or no contest plea, as long as the defendant is specifically advised of all three separate immigration consequences of his plea.  Here, James was advised of all three immigration consequences, even if the advisal did not include the exact verbiage of Code section 1016.5.

Now imagine that the trial judge advised James as follows: “conviction for this offense might render you deportable or deprive you of citizenship.” In this scenario, James has a successful motion to vacate because the trial judge did not advise him of all three possible consequences—deportation, exclusion from admission, and denial of naturalization.

Let’s next consider a different fact pattern: No transcripts exist that indicate what exactly James was advised on the record.  The only document in James’s file that relates to the proceedings in 1993 is a minute order not signed or initialed by James.  This minute order contains language indicating that James was advised of consequences of his plea on any “alien/citizenship/probation/parole status.”  This language is insufficient under Penal Code section 1016.5.   James is therefore entitled to a presumption that he did not receive the proper advisement under Code section 1016.5.  Unless the prosecution provides proof that James was advised of all three possible immigration consequences, James’s motion to vacate will likely be granted.

What must you show

To prevail on a motion to vacate under Code section 1016.5, you must show the following:

  1. Your motion is timely;
  2. At the time of your motion to vacate, your conviction may have one or more of the three consequences;
  3. The court omitted to advise you of one or more of the three consequences; and
  4. It is reasonably probable that you would not have pleaded guilty had you been properly advised. This last prong is referred to as a “showing of prejudice.”

Let’s take a closer look at some of these requirements.

Timeliness

A motion to vacate under Penal Code section 1016.5 is timely if brought within a reasonable time after the discovery of the potential consequences of a conviction.  Here, the law requires that you act with due diligence.  And if you do not act with due diligence, then your motion might be deemed untimely.

For example, in 1993, James is convicted of transporting cocaine in violation of code section 11352.  In 2000, as a result of this conviction, James is placed in removal proceedings. He hires an attorney who temporarily removes him from the proceedings.  Then, James learns that his 1993 conviction will subject him to deportation, exclusion from admission, or denial of naturalization.  James also learns that he must hire an attorney to file a motion to vacate the 1993 conviction.  Despite being told so, James waits until 2015 to hire an attorney to file a motion to vacate.  In this scenario, a court might find that James did not act with due diligence and that therefore his motion is untimely.

Now imagine that in 2000 James hires an immigration attorney to help him become a U.S. citizen.  The immigration attorney advises James that his 1993 conviction “might have immigration consequences.” In 2016, James is placed in removal proceedings because of the 1993 conviction.  His then immigration attorney advises him that his 1993 conviction might have the consequence of deportation, exclusion from admission, and denial of naturalization.  James then hires an attorney to file on his behalf a motion to vacate under Code section 1016.5.   In this scenario, James was placed on notice in 2016, and not in 1993.  Courts have held that advising a defendant that a no-contest plea may in the abstract have immigration consequences cannot be taken as placing him on notice that, owing to his particular circumstances, he faces an actual risk of suffering such consequences.

Showing of Prejudice

As a general rule, to prevail on a motion to vacate a conviction for a violation of Penal Code 1016.5, a criminal defendant must show prejudice from the trial Court’s failure to give the required advice concerning one or more of the three mandatory immigration consequences (deportation, exclusion and denial of naturalization) of a conviction. That is, the defendant must demonstrate that it is “reasonably probable” that he or she would not have pleaded guilty if property advised.

For example, James in the scenarios above testifies—via a sworn declaration—that he would not have entered a plea of no contest had he understood the immigration consequences of his plea agreement.  He would have understood that these consequences far outweighed in severity any further jail time that he would have had to serve had he not immediately entered into the plea.  Accordingly, he would have opted to ask his attorney to negotiate a safer disposition.  If the court finds this testimony credible, James has likely made the requisite showing of prejudice.

VACATING OR SETTING ASIDE A CONVICTION UNDER PENAL CODE SECTION 1437.7

Penal Code §1473.7(a)(1) states the general basis on which a motion to vacate can be made:

The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’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.

A motion under Penal Code section 1473.7 must be filed with “reasonable diligence” after whichever of the following dates is latest: (1) the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal; or (2) fhe date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.  Pen. C. §1473.7(b)

Thus, to prevail on a motion to vacate under Penal Code section 1437.7, you must show the following:

  1. You acted with due diligence and therefore your motion is timely; and
  2. You suffered a “prejudicial error,” meaning that you could not understand, defend against, or accept the immigration consequences of your plea because your attorney did not adequately advise you of those consequences.

Let’s take a closer look at the above two requirements under Code section 1437.7.

Timeliness of the motion—acting with “due diligence”

Your motion under Code section 1437.7 is considered timely if, after you received notice from immigration court that your conviction subjected you to removal proceedings OR a removal order based on your conviction becomes final, you take the necessary steps to vacate the conviction.

For example, in 2017, James receives a letter that he needs to appear in immigration court for removal proceedings initiated as a result of his 1993 conviction.  Within months of receiving this letter, James hires an attorney to file a motion to vacate under Code section 1437.7.  In this scenario, a court is likely to find that James acted with due diligence.

Prejudicial error

Section 1473.7(a)(1) allows motions to be raised alleging at least three distinct causes of action that may be raised independently or together: (1) defense counsel violated the duty to investigate and accurately advise the defendant about the specific immigration consequences of a plea; (2) defense counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration-safe alternative disposition; (3) the defendant failed to meaningfully understand the immigration consequences of a conviction.   In any of these scenarios, you will be deemed to have considered a “prejudicial error.”   And as under Penal Code section 1016.5, a mere advisement of possible immigration consequences is not sufficient under Code section 1437.7.  In other words, your attorney must advise you of the specific immigration consequences relevant to your conviction.

For example, in 2016, Jill pled to a misdemeanor attempted transportation of illegal aliens.  Jill’s attorney advised her that a conviction for this offense “might cause problems for [her] if he she decided to apply for a green card.”  The immigration statute expressly identifies the crime of transporting illegal aliens as a ground for removal.  In this scenario, Jill’s motion to vacate under Code section 1437.7 will likely be granted.  Courts have routinely held that where the immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal, the deportation consequence is truly clear, and thus a criminal defense attorney must advise his or client that removal is a virtual certainty.  Therefore, Jill’s attorney’s advisement that Jill merely faced potential immigration consequences was insufficient.

HOW THE LOS ANGELES CRIMINAL DEFENSE ATTORNEYS CAN HELP YOU

Negin Yamini will thorough examine the particular circumstances of your conviction to determine whether you are entitled to relief under Code section 1016.5 or 1437.7, or both. Negin’s strategy is to first file a compelling motion that clearly establishes the case law and its applicability to the facts of your case.   After giving the prosecutor a chance to consider this motion, Negin will then attempt to convince him or her not to oppose the motion.  Next, Negin will arrange for an in-chambers conference with the judge and the prosecutor to bring all parties on board with regards to the defense’s desired outcome of the motion.  Often times, both the judge and prosecutor oppose a motion to vacate.  Such opposition does not deter Negin.  She will fight—with zeal, determination, and steadfastness-- for the most just and favorable outcome in your particular case.

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