Motion to Vacate a Conviction in Indio
Protecting Hopeful Immigrants throughout the Palm Desert
For people whose convictions effectively close all doors to immigration relief, vacating the conviction in criminal court is the only way to preserve a chance of remaining in the United States. Many times, underlying convictions are unlawful and based on a noncitizen defendant’s failure to understand the immigration consequences of their actions. At the Law Offices of Anastacio De La Cruz, we help clients protect their future through compassionate legal service.
Recognizing that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants,” the Supreme Court held in Padilla v. Kentucky that a defense counsel’s failure to provide this immigration advice renders a conviction unconstitutional. Penal Code Sections 1473.7 and 1016.5 address motions to vacate related to immigration consequences.
Motion to Vacate Under Penal Code Section 1473.7
Penal Code section 1473.7 allows a defendant who is no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence if they can show 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 to guilty or nolo contendere.”
A defendant may receive mandatory advisement about immigration consequences and still fail to meaningfully understand those consequences, requiring the plea to be vacated. Over the past two years several cases have been decided providing more guidance to judicial officers as to when these cases should be granted. It is important to hire an attorney experienced in post conviction relief to help determine whether pursuing a vacateur under Penal Code Section 1473.7 suits your case and stated goals.
True Examples of Successful Motion to Vacate
In 2006, Mr. Purple who has no legal status in this country, pled guilty to two separate violations of possession of methamphetamine. He was told by his public defender and the court that if he completed a drug program, the convictions would be dismissed as though they never happened. Mr. Purple completed the intensive drug rehabilitation program, yet a number of years later was put into deportation proceedings.
He found out that even though the convictions were dismissed for state purposes, they remained convictions for federal purposes.
In 2019, Mr. Purple hired the Law Offices of Anastacio De La Cruz to vacate these convictions. After reviewing the court file, the client file, and the relevant law, Mr. De La Cruz noticed irregularities in the court paperwork and filed a motion to vacate under Penal Code Section 1473.7, alleging that Mr. Purple was prejudiced by the court and trial counsel’s misrepresentation about the conviction being dismissed as though it had never happened.
Further, Mr. De La Cruz argued that Mr. Purple had not been advised of the possible immigration consequences as required under Penal Code Section 1016.5. After providing evidence contemporaneous to the time of the plea that client would not have accepted the plea agreement had he known that he would have been deported and separated from his family, the prosecution submitted and judge granted the motion vacating the convictions. Mr. Purple is now eligible in immigration court for Cancellation of Removal for Certain Non-Permanent Residents.
In another example in 2007, Mr. Green, upon the advice of his public defender, pled guilty to a form of child endangerment. Because the charge was reduced from a felony to a misdemeanor, he assumed he was safe for immigration purposes.
Mr. Green left the country several times over the years, raised his family, and for 11 years had no issues of any sort. Unfortunately, in 2018 he was detained due to this conviction while coming back into the United States after a family vacation. He contracted the Law Offices of Anastacio De La Cruz to represent him in post-conviction proceedings.
Mr. De La Cruz reviewed the file, the court records, and the relevant law before filing a motion to vacate the conviction under Penal Code Section 1473.7, alleging that client had his constitutional right to effective assistance of counsel violated. Mr. Green also alleged that his plea was not made knowing and voluntarily, as he did not fully understand the true immigration consequences of the plea.
After a day-long tightly contested hearing, the presiding judge granted the motion based on a legal defect that damaged the client's ability to enter into the plea bargain knowingly and voluntarily. Due to this huge win, removal (deportation) proceedings against Mr. Green were terminated and he continues to reside with his family.
Motion To Vacate Under Penal Code Section 1016.5
Penal Code Section 1016.5(a) states that if you are a non-citizen facing criminal charges, prior to accepting a guilty plea or no contest plea, the court is required to read to you the following advisement:
If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
If the court has no record that you were advised of the immigration consequences of your plea, it will be presumed that you were not advised. This means the prosecution has the burden to prove that you were advised.
While the court is obligated to ensure the non-citizen defendant understands the consequences of how their plea could have immigration consequences, a defense counsel's duty extends much further.
If you do not think that you were advised as to the possible immigration consequences related to your plea by the court, it is important that you hire an attorney experienced in post conviction relief to help determine whether filing a motion to vacate the judgment and withdraw the plea under Penal Code Section 1016.5 might be appropriate.
True Example of Motion to Vacate under Penal Code Section 1016.5
In 2002, Mr. Blue, a Legal Permanent Resident, pled guilty to a misdemeanor violation of disobeying a court order related to a domestic violence charge. He was not sentenced to time in jail but was put on probation for two years. Years later, after marrying the protected party in the domestic violence case and having three children with her, Mr. Blue was put into deportation proceedings as a result of this conviction.
His immigration attorney correctly determined that even though Mr. Blue had been living in the United States for over 30 years (since the age of 11), and had a family (all United States Citizens) who depended on him, this conviction rendered him ineligible to receive a Cancellation of Removal waiver in immigration court.
In 2017, Mr. Blue retained the services of the Law Offices of Anastacio De La Cruz. After carefully analyzing all court records available and pertinent law, Attorney De La Cruz filed a motion to vacate the conviction under Penal Code Sections 1016.5 and 1473.7. Relief under Penal Code Sections 1016.5 was ultimately granted when the prosecution was not able to prove that Mr. Blue was fully advised of his rights at the time of the plea.
Mr. Blue was then statutorily eligible for Cancellation of Removal for Certain Non-Permanent Residents.
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