Vacating a Criminal Conviction for Immigration Purposes

July 1, 2019  •  Jerod Gunsberg, Los Angeles Criminal Defense Lawyer

In 2016, the California State Legislature created a new law that allowed a defendant in a criminal case – even if she or he is no longer in custody – to petition the court to vacate their conviction on the grounds that “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.” (California Penal Code § 1473.7,(a)(1)).

What this means is that if a defendant does not meaningfully understand that a guilty plea in a California criminal case would result in being deported from the United States, the defendant can ask the court to vacate the conviction.

  • Of course, this is easier said than done and requires the work of a qualified criminal defense attorney who is familiar with the procedure and substantive law. Yet it can happen and is often successful.

    Yesterday, in an opinion from the California Court of Appeal, in the case of People v. Mejia the court ruled that “the key to the statute is the mindset of the defendant and what he or she understood – or didn’t understand – at the time the plea was taken, and not whether their attorney technically provided IAC (ineffective assistance of counsel).”

    A little background as to why this decision is important. When the statute was passed in 2016, many judges assumed that a defendant seeking to vacate a conviction would need to show that his or her lawyer committed ineffective assistance of counsel – that their lawyer’s advice was so deficient that it fell below the constitutional standard set forth in the 6th Amendment. In 2019, the California Legislature clarified the statute. Defendant did not need to prove ineffective assistance of counsel, only that the defendant “meaningfully understood” the immigration consequences of their plea. The Mejia case affirmed this subjective standard.

    Of course, there is a lot to winning a PC 1473.7 motion, there needs to be more evidence than just the defendant claiming he or she didn’t understand the immigration consequences at the time of the guilty plea, but with an experienced criminal defense attorney conducting a thorough investigation, briefing, oral arguments, and, if needed, appeals.

    If you or a loved one is facing deportation from the United States as a result of a previous guilty plea and conviction and you would like to know whether the case may qualify for a motion to vacate the conviction, you can contact my office at (323) 633-3423 or via the secure contact form on this page for a free and confidential consultation.

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