New Developments and Options Currently Available for Those Facing Deportation after Criminal Conviction

On January 1, 2017, California Penal Code ss 1473.7 was enacted to allow individuals who are no longer in custody to file a motion to vacate, or otherwise overturn, a conviction or sentence. A motion to vacate must be based on either new evidence, which was previously not available and/or a prejudicial error which caused an error to the defendant in fully understanding the immigration consequences of pleading guilty or no contest. A prejudicial error causes damage to a defendant’s ability to understand, accept, and defend against actual or potential, unfavorable, immigration consequences.

Although convictions could be challenged prior to the enactment of California Penal Code ss 1473.7, convictions could only be challenged if a defendant was still in custody and by filing a writ of Habeas Corpus. A writ of habeas corpus is used to bring an individual currently in custody, before the court, to have his or her writ reviewed to determine if his or her imprisonment is lawful. A writ of habeas corpus can only be filed and considered if the defendant is still in custody. A motion to vacate under California Penal Code ss 1473.7 does not have a timeline; however, it must be filed within reasonable diligence after receipt of an NTA or the issuance of a final order. This type of motion to vacate provides an alternative to a writ of Habeas Corpus because once individuals were no longer in jail, they were left without options. Before this type of motion, there was no way for people to go back and erase a conviction, or challenge a conviction.

A motion to vacate under California Penal Code ss 1473.7 can also be filed if a defendant is able to establish ineffective assistance of counsel if counsel failed to advise the defendant of possible immigration consequences. Being able to demonstrate ineffective assistance of counsel is an example of establishing prejudice for the purpose of a motion to vacate. Ineffective assistance of counsel can occur if an attorney fails to “properly” advise a client of the adverse or unfavorable immigration consequences as a result of a guilty or no contest plea. Most courts review claims de novo allowing courts to determine whether or not there was the abuse of discretion. De Novo review may be applied to review a motion to vacate under Penal Code ss 1473.7 and it may be considered an appropriate standard of review for such a motion.

People V. Ogunmowo, 2018, is an example of a Motion to Vacate under California Penal Code ss 1473.7 to overturn a conviction that was a result of ineffective assistance of counsel. Ineffective assistance of counsel was established in this case and Ongunmowo was able to benefit from a motion to vacate under Cal Pen. Code ss 1473.7 because at the time of his criminal trial, his attorney failed to advise him of the immigration consequences that would result if he pled guilty. Ongunmowo, a Nigerian native and legal permanent resident, pled guilty in 1989 and he was convicted for possession for sale of a controlled substance. His attorney told him that he WOULD NOT face immigration consequences if he pled guilty. When Ogunmowo filed his Motion to Vacate under California Penal Code ss 1473.7 he was able to have his conviction reviewed again and he was found to have been the victim of ineffective assistance of counsel.

The immigration consequences of certain crimes can be enough to affect the rest of your life if not considered entirely before entering a guilty plea or a no contest plea. Although in the past, the only way to revisit a guilty plea was to submit a writ of habeas corpus while still intoxicated, times have changed for the better and options are now available to those who have served their sentences and currently experiencing the effects of these immigration consequences. There is no need to despair and certain convictions can now be overturned. If you think a motion to vacate under Penal Code ss 1473.7 is something that might benefit you, it is worth looking into!

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