With the federal government increasing its efforts to deport immigrants, especially those who have been convicted of crimes, California’s latest reform could not have been timelier.
Assembly Bill 813 went into effect Jan. 1, 2017. Prior to the law’s enactment, a conviction could only be challenged while a person was serving time in jail, prison or on probation. Now, California Penal Code Section 1473.7 allows persons who have already served their sentence to challenge their convictions on several grounds.
So how does this impact those fearing deportation? A criminal conviction could result in deportation if you are not a U.S. citizen. If you plead guilty or no contest to charges but you were not advised of or unable to understand the effects of your plea on your immigration status, you may be able to challenge your conviction.
PC 1473.7 and PC 1016.5
There is already a law that allows for challenges to a guilty or no contest plea while the defendant is serving a sentence. California Penal Code Section 1016.5 requires the court to read the following advisement to a defendant before accepting a guilty or no contest plea:
If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.1
Additionally, defendants have the right to request additional time to consider the immigration consequences that could come with a criminal conviction. If the advisement is not on the court’s record, the presumption is that the defendant was not advised.
Now, under PC 1473.7, these challenges can be made after the defendant has already served his or her sentence. If the challenge is successful, the court must allow the defendant to withdraw the plea.
In order for your motion to vacate a judgment to be granted, your attorney must show that:
- You were not properly advised of the immigration consequences as provided by the statute;
- It is possible that your conviction carries one or more of these immigration consequences, which could include deportation; AND
- You were prejudiced by the non-advisement
To show prejudice, your attorney does not have to show that you would not have been convicted of the crime had you plead not guilty. Instead, your lawyer must show that you would have made a different choice than pleading guilty or no contest if you had been advised of these immigration consequences prior to entering your plea.
Contact the a Defense Attorneys at Wallin & Klarich as Soon as Possible
If you have question about how your criminal record could impact your immigration status, you should contact an experienced criminal defense attorney right away. At Wallin & Klarich, our attorneys have over 35 years of experience fighting for the rights of criminal defendants, and we understand how to protect your rights. We work tirelessly to give our clients the best possible chance at successfully remaining in the United States.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.
Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will be there when you call.
1. Cal. Pen. Code §1016.5(a)↩