Category Archives: immigration law

Using Penal Code 1473 To Remove Past Convictions

Withdrawal Of Plea Using Penal Code 1473

Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.

If the conviction is overturned, the criminal case starts again. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.

penal code 1473.7

Reasons To Withdraw A Plea

Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:

  1. If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
  2. New evidence of innocence exists and requires the withdrawal of a plea.

Failure to Understand Immigration Consequences

If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.

penal code 1473.7

Incompetent Counsel

A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:

    1. That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
    2. That he or she was prejudiced by that deficient performance

A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).

When To File A Motion Under Penal Code 1473.7

The motion cannot be filed until:

  • The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
  • The date a removal order based on the conviction or sentence becomes final.

The motion shall be filed with reasonable diligence after the later of the above dates.

The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.

penal code 1473.7

After Filing The Motion

The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.

Entering An Immigration-Neutral Plea

In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

California Becomes A Sanctuary State

California Becomes A “Sanctuary State”

On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).

sanctuary state

Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.

When Does The Sanctuary State Law Start?

The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.

sanctuary state

What Changes?

The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.

The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.

sanctuary state

California Responds To Trump Administration

State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.

Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.

The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.

sanctuary state

Santa Barbara County Sheriff

Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com