The United States Supreme Court held in Padilla v. Kentucky (2010) 559 U.S. 356, “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” The court ruled that a lawyer is constitutionally ineffective for Sixth Amendment purposes if he or she fails to advise a client of the potential immigration consequences of pleading guilty to a criminal charge, particularly one that will have deportation as a virtually certain consequence.

In recognition of the large number of immigrants who have finished serving criminal sentences who may not have received proper advice about their convictions’ effect on their immigration status, the California Legislature last year enacted Assembly Bill 813 as codified in Penal Code section 1473.7. The law opens critical new avenues for relief for immigrants, granting trial courts jurisdiction to hear specific claims of legal invalidity brought by individuals no longer in criminal custody. It was signed into law by Governor Brown in September 2016 and took effect in January 2017.

The legislative intent of Penal Code Section 1473.7(a)(1) is to create a right which enables an individual to vacate a conviction if they were given improper, or no immigration advice:

This bill would create an explicit right for a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence based on 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, or based on newly discovered evidence of actual innocence, as specified. The bill would require a court to grant the motion if the moving party establishes a ground for relief, by a preponderance of the evidence. The bill would require a court granting or denying the motion to specify the basis for its conclusion. (CONVICTION OF CRIME—PREJUDICIAL ERROR, 2016 Cal. Legis. Serv. Ch. 739 (A.B. 813) (WEST)).

Prior to the enactment of Penal Code Section 1473.7, the Legislature recognized that California defense counsel commonly gave incorrect, or no, immigration advice to their clients. Similarly, the author of Assembly Bill 813 noted the following:

California lags far behind the rest of the country in its failure to provide its residents with a means of challenging unlawful convictions after their criminal sentences have been served. Forty-four states and the federal government all provide individuals with a way of challenging unjust convictions after criminal custody has ended. In California, however, individuals who gain access to evidence of actual innocence—or to proof of a defect in the underlying criminal proceeding—have no way to present this evidence before the court after criminal custody has expired. [¶] This omission has a particularly devastating impact on California’s immigrant community. Since 1987, California law has required defense counsel to inform non-citizen defendants about the immigration consequences of convictions. However, many defense attorneys still fail to do so. Many immigrants suffer convictions without having any idea that their criminal record will, at some point in the future, result in mandatory immigration imprisonment and deportation, permanently separating families. (Sen. Public Safety Com., analysis of Assem. Bill No. 813 (2015–2016 Reg. Sess) p. 4.)

Penal Code section 1473.7 creates a mechanism to petition the trial court to vacate a conviction where 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. The motion must be made with “reasonable diligence” after the party receives notice of pending immigration proceedings or a removal order. Cal. Penal Code § 1437.7 (b). The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence that he or she is entitled to relief, the court must allow the person to withdraw his or her plea. (Id., subd. (e).)

Immigration law is an incredibly complex field constantly in flux. The creation of a mechanism for an individual who has received bad or no immigration advice to set aside their conviction and reopen criminal proceedings allows that individual to seek a resolution that will not impact their immigration status. It is important to keep in mind that the statute does not lead to the criminal case being dismissed. Rather if the motion is granted, the criminal proceeding restarts at the same posture prior to the plea. The consequences of even a minor criminal conviction can profoundly impact an individual's immigration status and they must understand those consequences prior to entering into a plea bargain. California now has a mechanism to help ensure that happens.