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New Law Could Vacate Offenses Affecting Immigration Status


open-law-book-with-a-wooden-judges-gavel-on-table-in-a-courtroom-or-law-enforcement-officeIn September, California Governor Jerry Brown signed into law Penal Code § 1473.7. This new statute allows certain criminal offense convictions to be vacated, with no time limit or custody agreement. Though many criminals may benefit from the new law, it specifically helps those whose immigration status may be adversely affected by a conviction. Under Penal Code § 1473.7, a motion to vacate a conviction or sentence may be made if:

  1. It was invalid due to prejudicial error, which may have damaged the defendant’s ability to fully understand how the decision to plead guilty or nolo contendere (no contest) would affect their immigration status; or
  2. New evidence that proves actual innocence is discovered, requiring the sentence to be vacated in the interest of justice or as a matter of law.

Penal Code § 1473.7 will come into effect on January 1, 2017. However, it may be used to vacate convictions from any time. Though the presentation of new evidence is rather self-explanatory, prejudicial error is much more complex. Here’s everything you need to know about this new law.

Why a Defendant May Not Understand Their Actions

The first criteria of Penal Code § 1473.7 deals with the defendant’s ability to understand how their plea may affect their immigration status. Though there are quite a few reasons for this to be the case, they can nearly all be tied to ineffective legal counsel. It is an attorney’s job to make sure their client fully understands their situation, even if they have to take action such as bringing in an interpreter. If they fail to do so, the defendant may bring a motion to vacate their conviction. Here are just a few ways an attorney could be the cause of prejudicial error:

Failure to Investigate How a Conviction May Impact Immigration

A criminal defense attorney is responsible for researching and informing their client how a conviction will impact their lives. This includes how a conviction will affect immigration status. Further, the attorney is responsible for knowing whether or not their client is a U.S. citizen. A wrong assumption one way or the other could lead to a motion under Penal Code § 1473.7.

Failure to Advise of Consequences of a Conviction

A defense attorney is responsible for letting their client know how a conviction could potentially impact their immigration status. However, it is not just the attorney responsible. When the defendant enters their plea of guilty or nolo contendere, the court is also supposed to let them know how such a plea could affect their status. Specifically, they must warn of three different possible outcomes: deportation, denial of naturalization and/or exclusion from admission to the U.S.

Giving False Advice Regarding Immigration Status

It is the responsibility of a defense attorney to give sound legal advice to their clients, including incorrectly how a conviction will impact immigration status. Though different than failing to give any advice, it is just as wrong. This also applies to the court itself. For instance, if the court advises a defendant to enter a guilty plea without letting them know how that will affect immigration, or tells a defendant that a certain plea will lead to deportation without any proof that it will, it is considered false advice.

Not Defending Against Immigration Consequences

Just informing the defendant how a conviction will affect immigration status is not enough. An attorney must also provide solid defense against these consequences. This includes both in court and during plea negotiations. If an attorney is ineffective in arguing against immigration status consequences, the defendant may file a motion to have the conviction vacated. This may also be the case if the attorney does not use immigration status when trying to get a shorter sentence or otherwise have the offense reduced.

In each of these instances, prejudice must be proven. In this context, prejudice is shown when the deficiency or failure of the attorney leads to increased jail time or severity of the sentence. In addition, if the defendant suffers worse immigration consequences than the attorney should have attempted to obtain, it could be considered prejudice. An attorney should seek a non-deportable sentence if at all possible. Essentially, if there would have been a different outcome with a better attorney, it may be considered a prejudicial error.

Other Reasons a Sentence May Be Vacated

If a defendant does not speak English well, they have the right to an interpreter under both the US Constitution and under California law. If that right is denied, it may be grounds to vacate the conviction. In addition, if the interpreter does not adequately perform their duties in informing the defendant what is happening in court, the conviction may be vacated. There is no need to show prejudice in these types of cases.

Basing a conviction on misinformation or improper considerations may also lead to a sentence being vacated. For instance, a prosecutor may try to use an unproven assumption of a criminal record or other false evidence. They may also try to use the defendant’s ethnic origins or religion to incite racial prejudice or passion in a jury or judge to seek a conviction. All of these are bases for vacating a sentence.

Finally, defendants have a right to counsel. If they waive that right, they cannot claim their attorney acted with prejudicial error. However, the defendant must be aware of their charges and the possible penalties associated with said charges before they can knowingly and intelligently represent themselves. The defendant must have the mental capacity to defend themselves, and knowingly and voluntarily waives their right to counsel. For non-native English speakers, this can be difficult to do without an interpreter.  

There are many ways in which a conviction can be vacated, even if they are not listed in this blog. If you believe you or a loved one has been wrongly convicted in San Bernardino based on the criteria spelled out in Penal Code § 1473.7, you have legal options. Contact the attorneys at MBLK Law Group today for a free case evaluation. Se habla español.

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Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.