Did You Plead Guilty Without Understanding the Immigration Consequences? Lessons from People v. Avena
If you are not a U.S. citizen and have been accused of a crime, the decisions you make in your case can have permanent consequences. In many situations, a conviction does not just mean jail time or probation—it can lead to deportation, denial of reentry, or being permanently barred from the United States.
A California case, People v. Avena, shows what can happen when someone makes critical decisions in a criminal case without fully understanding those immigration consequences—and what legal options may still be available afterward.
Our experienced criminal defense attorneys at Wallin & Klarich can guide you through the legal process. Call Wallin & Klarich today toll-free at (877) 466-5245 for your free consultation with one of our criminal defense attorneys near you.
What Happened in People v. Avena
Jose Manuel Avena, a non-citizen, was charged with assault with intent to commit rape. Under federal immigration law, that offense qualified as a “crime of violence,” meaning a conviction would almost certainly result in removal from the United States.
However, Avena was never properly advised of this risk. His public defender did not explain the immigration consequences, and his later private attorney also failed to discuss them with him.
During the case, the prosecution offered a plea deal. Avena rejected that offer and chose to go to trial—without understanding that a conviction would likely lead to deportation.
At the same time, a significant legal development occurred. In Dimaya v. Lynch, the Ninth Circuit ruled that part of the legal definition of a “crime of violence” was unconstitutionally vague. This created a possible “immigration-neutral” option—meaning a resolution that could avoid automatic deportation.
Avena was ultimately convicted at trial. He later filed a motion to vacate his conviction under California Penal Code section 1473.7, arguing that he did not meaningfully understand the immigration consequences when making decisions in his case.
Your Rights Under Penal Code Section 1473.7
If you are no longer in custody but facing immigration consequences because of a criminal conviction, California law may allow you to challenge that conviction.
Under Penal Code section 1473.7, you can ask the court to vacate a conviction if:
- You did not meaningfully understand the immigration consequences of your plea or case decisions, and
- That lack of understanding affected how you handled your case.
This law is especially important for people who plead guilty or no contest without knowing the true risks.
When Can a Plea Be Withdrawn?
The court in People v. Avena made an important point that applies directly to accused individuals:
If there is a reasonable possibility you would not have accepted a guilty plea had you understood the immigration consequences, you may be allowed to withdraw that plea.
To succeed, you generally must show:
- You did not fully understand the immigration consequences
For example, you were not told that deportation was virtually certain. - That misunderstanding mattered
You would have made a different decision—such as accepting a different plea, negotiating alternative terms, or going to trial. - There was a realistic alternative
There was a reasonable chance of achieving a result that would have avoided or reduced immigration consequences.
Why the Court Ruled in Avena’s Favor
The appellate court reversed the trial court’s decision and allowed Avena another chance to challenge his conviction because:
- Neither of his attorneys showed that they warned him about the near-certain immigration consequences.
- There was a viable immigration-safe option available during his case.
- There was a reasonable probability he would have chosen that option instead of going to trial.
- The prosecution’s own testimony showed that an alternative plea meeting their requirements was possible.
What This Means If You Are Facing Charges
If you are currently accused of a crime and are not a U.S. citizen, it is critical that you:
- Ask your attorney specifically about immigration consequences
- Understand whether a conviction could lead to deportation
- Explore whether there are alternative charges or plea options that are more immigration-safe
Do not assume your attorney will automatically address these issues—you need clear, informed answers before making any decision.
What If You Already Pleaded Guilty?
If you have already accepted a plea and were not properly advised about immigration consequences, you may still have options.
You may be able to file a motion to withdraw your plea or vacate your conviction if:
- You did not understand the immigration consequences at the time, and
- There is a reasonable possibility you would have rejected the plea if you had known.
Even if your case is old and you are no longer in custody, relief may still be available under Penal Code section 1473.7.
How Wallin & Klarich Can Help
A Wallin & Klarich attorney can review your case to determine whether your plea or conviction is legally vulnerable under Penal Code section 1473.7, including whether you were properly advised of immigration consequences. Our attorneys work to identify immigration-safe alternatives, consult with immigration experts when necessary, and build a strong motion to vacate or withdraw your plea. If relief is available, we will advocate on your behalf in court to help protect your ability to remain in the United States.
Call Wallin & Klarich Today
If you believe you were not properly advised, or if you are currently facing charges and are concerned about immigration consequences, it is important to act quickly and get accurate legal guidance. At Wallin & Klarich, our attorneys have extensive experience helping non-citizens protect their rights and challenge convictions that carry immigration consequences. Understanding your options now can make all the difference in your future.
At Wallin & Klarich, we have offices all over Southern California: Irvine, Pasadena, Riverside, San Bernardino, San Diego, Torrance, and Anaheim. Additionally, our law firm can handle many types of cases statewide.
Discover how our team can assist you. Contact us today, toll-free at (877) 466-5245 for a free consultation with a skilled criminal defense attorney near you.
