IMPORTANT NEW LAW MAY PROVIDE RELIEF TO NONCITIZENS WHO FACE DEPORTATION FOR A PRIOR CONVICTION

 

 

A new law took effect on January 1, 2017 that may help some immigrants who face possible deportation due to a previous conviction. The federal laws concerning immigration stipulate that non-citizens, even those persons who are here legally, may be deported if they have been convicted of a deportable crime, and even if that conviction happened many years ago. With the stepped-up immigration controls and deportations, this has become an urgent matter for some immigrants.

 

The new law in California, codified as Penal Code section 1473.7, allows those persons who are no longer under the jurisdiction of the court (that is, they are no longer incarcerated or serving a post-conviction sentence such as probation) to move the court to vacate the conviction if 1) the conviction or the sentence was legally invalid because the defendant pleaded guilty without understanding the potential immigration consequences or 2) there is newly discovered evidence that the defendant was actually innocent of the crime for which he or she was convicted.

 

Until this new law was passed, there was no legal remedy for a noncitizen to challenge a conviction or sentence if he or she was no longer under the jurisdiction of the court.

 

Let’s look at an example:

Mary, who was a legal resident (with a “green card”), was arrested for passing a couple of fraudulent checks in 2005. She had a limited command of the English language and legalese, which is difficult even for the native English speaker, was beyond her grasp of understanding. Even though she had an attorney, she did not understand that pleading guilty to the charges could result in her deportation from the United States, nor did her attorney explain that to her. She believed that because she was a legal permanent resident, she would never face deportation.

 

The district attorney offered her a deal: plead guilty to two counts of forgery with a sentence of one year (365 days) in jail, with the jail sentence stayed (entered but not served unless probation is violated) and serve 3 years of probation. Mary did not understand that by making this plea, she could be subject to deportation by the federal authorities because a forgery conviction is considered an “aggravated felony” if the sentence imposed is for one year or more. (8 USC §1101(a)(43)(R), (S); INA § 101(a)(43)(R), (S).) Honestly, the federal laws concerning deportable crimes are so complicated, most lawyers don’t even understand them.

 

Mary served her term of probation without any violations and in 2008, her probation was terminated and the case was closed. By law, therefore, the court no longer had any jurisdiction over this case. In 2015, Mary decided to apply for citizenship. Her application and the requisite Department of Justice criminal history review revealed the prior conviction. She was shocked when she received a notice regarding her citizenship application informing her that not only was she ineligible for citizenship but that she faced possible deportation because of her “aggravated felony” conviction, a deportable crime.

 

When Mary pleaded guilty to the charges, the law required then—as now—that her plea was made freely and voluntarily and that she “knowingly, willingly, and intelligently” waived her rights relating to the plea, including immigration consequences. Well, since Mary’s attorney didn’t properly investigate and advise her that she might face deportation due to the plea and since Mary did not meaningfully understand the immigration consequences of her plea, she did not “knowingly, willingly, and intelligently” waive her rights as to potential immigration consequences. But in 2015, Mary had no recourse; she couldn’t go back in time to reverse what was essentially an invalid plea because the court no longer had any jurisdiction over her case.

 

Penal Code section 1473.7 corrects this injustice. It permits a former defendant who is no longer under the jurisdiction of the court to file a motion with the California superior court on the grounds that the conviction or sentence is legally invalid because the defendant entered a plea without meaningfully understanding the adverse consequences. It applies when the defendant’s attorney failed to investigate and advise the defendant of the immigration consequences and/or the attorney failed to defend against the immigration consequences by, for example, negotiating a plea that did not have the immigration consequence (as I mentioned before, these laws are complicated even for attorneys) and/or when the defendant did not meaningfully understand the potential immigration consequences of the plea.

 

This section will also be of benefit to former defendants who face deportation on a conviction for which the sentence has already been served (and therefore no longer under the jurisdiction of the court) but where new evidence exonerates them. This would most likely apply in cases where another person admits to the crime many years later or DNA evidence proves the former defendant did not commit the crime.

 

This new law has far-reaching consequences as there are many previously convicted noncitizens in California who did not actually understand that their plea could result in their deportation. Since our current president has warned that deportation proceedings will be stepped up, I would encourage any noncitizen who has pleaded to a deportable offense, to promptly explore the possibility of filing a Penal Code section 1473.7 motion.

 

If you would like to discuss this post-conviction relief or any other criminal matter, you may contact Orange County criminal defense attorney William Weinberg at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.