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Immigration Cases

If you took a plea deal in a criminal case and suffer from immigration consequences you may have legal grounds to vacate the plea. This means that you can potentially eliminate the plea in its entirely depending on the facts and circumstances of your case.

Motion to Vacate Plea Pursuant to Penal Code Section 1473.7

This motion may be made on two grounds: (1) legal invalidity due to a prejudicial error that impaired the defendant’s ability to knowingly accept or defend against adverse immigration consequences stemming from a guilty or no contest plea; or (2) newly discovered evidence of actual innocence. This motion may serve to invalidate convictions and sentences that occurred at any time if the defendant proves either ground by a mere preponderance of the evidence

Motion to Vacate Plea Pursuant to Penal Code Section 1016.5

Under this law, the court “[s]hall vacate the judgment and permit the defendant to withdraw a plea of not guilty or nolo contendere . . . and enter a plea of not guilty” if the court, prior to the defendant entering into the guilty or no contest plea, failed to advise the defendant as is now required by California Penal Code § 1016.5(b). To constitute a proper advisement under § 1016.5 for any guilty or no contest plea, the court must administer the following advisement: “If you are not a citizen, you are hereby advised that a 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.” Cal. Pen. Code § 1016.5 (b)“. In other words, if the court failed to properly advise you that your plea could have immigration and/or deportation consequences, you may have valid grounds to challenge your plea agreement under this Code section.

Motion to Vacate Plea Pursuant to Penal Code Section 1473.6

Section 1473.6, subdivision (a) states in relevant part that "[a]ny person no longer unlawfully imprisoned or restrained may prosecute a motion to vacate a judgment for […] Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.” A section 1473.6 motion must be based on evidence that “could not have been discovered with reasonable diligence prior to judgment.” (Cal Pen. Code § 1473.6 (b),) and it must be filed within one year after such evidence is discovered (Cal. Pen. Code § 1473.6 (d).) The procedure for bringing and adjudicating a section 1473.6 motion is “the same as for prosecuting a writ of habeas corpus.” (Cal. Pen. Code §1473.6 (c).) The legislature created this statutory motion to provide an avenue for those individuals “no longer in the system to challenge their judgment when they learn that their conviction was obtained in part because of fraud or false evidence by a government official.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1391 (2001–2002 Reg. Sess.) as amended Apr. 10, 2002, p. 5.)




Motion to Vacate Plea

Need More Information?? If you would like more information about the Immigration process or we might apply the motion in your specific case, please don’t hesitate to contact us. Depending on your situation, you might be facing a deadline within which to seek help. Don’t wait and risk jeopardizing your Constitutional rights.

California Motion to Vacate Plea Options Under California law, you may file a Motion to Vacate under certain defined conditions.

Common grounds to file a motion to vacate include:

  • You were charged in a criminal case
  • You were not a citizen at the time of your plea
  • You did not understand the implications of your immigration status
  • Incompetency during trial
  • Newly discovered evidence of actual innocence exists
  • Newly discovered evidence that a government official testified falsely
  • Newly discovered evidence of fraud by a government official