Until recently, individuals in California who wanted to challenge the constitutionality of their conviction or sentence had to be in custody to file a writ of habeas corpus in order to do so. This, of course, meant that those who became aware that there was some unconstitutionality affecting their conviction or sentence after release were left without any recourse. Sadly, this was even the case in situations in which the only witness to the crime later recanted their story.
As many immigrants are becoming aware, especially in this changing political climate, certain convictions can trigger removal proceedings, causing non-citizens to have to spend a significant amount of time in a federal detention facility (often far from home,) before being deported. All too-commonly, these non-citizens become aware that their convictions have made him or her deportable only after they have been released from custody. This is especially common where the non-citizen chose not to be represented by an attorney during the pendency of their case, which is always an ill-advised decision.
Why is it so ill-advised for a non-citizen to chose to represent themselves? Because an attorney can not only help mitigate the direct consequences of a conviction, but can also help the defendant understand the collateral consequences—such as immigration consequences—of the conviction. In fact, recognizing the importance of ensuring that non-citizen’s know about the potential immigration consequences of their convictions the U.S. Supreme Court has held that defense attorneys MUST advise non-citizens of these consequences are try to seek out immigration-safe plea bargains. For that reason, if a defendant wasn’t made aware of these consequences, that defendant has good cause to challenge the constitutionality of the conviction.
When wishing to attack the conviction for immigration-related purposes, an often-pursued route for those out of custody used to be to claim ineffective assistance of counsel (IAC) through a writ of coram nobis. Unfortunately, this attack strategy was rendered moot when, in 2009, the California Supreme Court ruled that such IAC claims could not be raised this way.
Thankfully, as of January 1, 2017, California’s Penal Code 1473.6 now allows these out-of-custody non-citizens a chance to undo their convictions in certain circumstances. To take advantage of Penal code 1473.6, and vacate the conviction, an immigrant needs to either (1) assert that he or she did not understand the immigration consequences of the conviction, or (2) indicate that they want to present new evidence of innocence (such as DNA testing, or someone else’s confession to the crime which didn’t exist at the time of the original trial.) To the point, the law allows an immigrant to petition for relief where there was “a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere [no contest].”
This means a motion can be made under three circumstances: where (1) the immigrant’s defense attorney failed to adequately inform the client about the specific immigration consequences, (2) the attorney didn’t try to plea bargain for an immigration-safe alternative, or (3) the defendant failed to meaningfully understand the immigration consequences of the conviction.
It is important to note, however, that a motion under PC 1473.6 must allege that the defendant was prejudiced by one of these errors. What that may sound like a daunting hurdle to overcome, California has determined that it amounts to “prejudice” if the immigrant can show that it was reasonably probable he or she would not have pleaded guilty absent the error or that “a decision to reject the plea bargain would have been rational under the circumstances.” The immigrant need not prove that he or she could have obtained a more favorable outcome at trial or in plea cases.
If the plea is withdrawn, the conviction ceases to exist for any purposes. It may no longer be a basis for future sentence enhancements, and the plea withdrawal eliminates any registration requirements that may have previously attached.
If you’d like to talk to an attorney about the possibility of having someone file a motion under PC 1473.6 on your behalf, feel free to give Devina Douglas a call.
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