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Jan 03, 2018

New Law Helpful to Immigrants Facing Deportation

New Law Helpful to Immigrants Facing Deportation

If you’re a non-citizen facing deportation proceedings because of a past criminal conviction, you could have the ability to have that criminal conviction vacated – or erased – under a recent revision to California law. In September 2016, Governor Brown signed the revised California Penal Code Section 1473.7 into law. This statute allows you to file a motion to vacate a conviction or sentence with looser time restrictions, and without the requirement of proving that you are still in custody.

This change brings California into line with 44 other states that have recognized the importance of giving immigrants the possibility of avoiding deportation by vacating their criminal convictions. But this remedy isn’t for everyone. To successfully file a motion to vacate, you need to demonstrate that you were unfairly convicted because your status as an immigrant put you at a disadvantage, or because new evidence has emerged that points to your innocence.

If you’re facing deportation and want to know more about your legal options, contact a criminal defense attorney from Silver Law Firm right away. Call us today at (510) 995-0000.

Why Is the New Motion to Vacate So Important?

In the past, one of the only ways to vacate a California criminal conviction was to file a writ of habeas corpus. To do so, you had to be in custody. Once you completed your jail term, probation, or parole, you were no longer in custody and the courts lost their jurisdiction over your claim.

Another option was to file a motion to vacate under California Penal Code Section 1018 within six months of your conviction. But many people don’t realize the importance of vacating a conviction until well after their release from custody. Many immigrants only realize this once they are sent to deportation proceedings because of their criminal conviction.

Under Penal Code section 1473.7, there are no hard deadlines on when you can file a motion to vacate, meaning that you can attempt to vacate a conviction that happened years in the past. However, a court can reject your motion if you fail to file it with “reasonable diligence” after receiving a notice to appear in immigration court, or after a removal order has been issued against you.

Who Can Benefit from the New Motion to Vacate?

You can file a motion to vacate a conviction because of the legal invalidity of your plea of guilty or nolo contendere, or because of newly discovered evidence.

To prove the legal invalidity of your plea, you need to show that a pre-judicial error occurred. This means an error that was so unfair as to justify the vacation of your sentence, such as when:

  • Your defense lawyer violated their duty to advise you about the consequences of a guilty or nolo contendere plea on your immigration status
  • Your lawyer didn’t attempt to obtain a plea deal involving an immigration-safe disposition, such as a conviction for a lesser offense or probation
  • You didn’t meaningfully understand the immigration consequences that a criminal conviction might have

Your motion to vacate must show the court exactly how these factors were pre-judicial – it’s not enough to just show that they occurred. To do this, you generally need to demonstrate that you would not have entered a plea of guilty or nolo contendere had you been aware of the immigration consequences of such an action.

The new motion to vacate isn’t only available to immigrants. You can also ask the court to vacate your conviction on the basis of newly discovered evidence. In general, the sort of evidence that might justify the vacation of a conviction are:

  • The results of scientific tests such as DNA testing
  • Someone else confessing to the crime of which you were convicted
  • Facts that undermine the evidence used to convict you, such as widespread contamination at the crime lab that processed your evidence

California Penal Code section 1473.7 states that “if the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea.” Once the plea is withdrawn, you will need to negotiate a new, immigration-safe plea deal. You can also argue for the dismissal of your charges, or attempt to prove your innocence at trial. These alternatives, however, are better suited for motions to vacate based on the availability of new evidence.

How Silver Law Firm Can Help

If you or a loved one has received a notice to appear in immigration court, it’s time to consult with Oakland criminal defense attorney Elliot Silver about filing a motion to vacate. A successful motion to vacate can enable you to avoid deportation and the devastating consequences it can have on you and your family. To find out how a motion to vacate might apply in your case, contact Silver Law Firm today at (510) 995-0000 for a free and confidential consultation.