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Jun 03, 2017
California Creates “Do-Over” Remedy for Immigrants to Avert Deportation
Jun 03, 2017
By Charles Dresow
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:
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:
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.
Charles Dresow is a partner at Ragghianti Freitas LLP. His practice focuses on representing those accused of crimes.