Penal Code section 1473.7: New Vehicle for Relief from Immigration Consequences
Effective January 1, 2017, Penal Code section 1473.7 will permit persons no longer in criminal custody to file a motion to vacate a conviction based on: (1) a prejudicial error damaging the person’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; or (2) newly discovered evidence of actual innocence. required to disclose his or her immigration status to the court.
Penal Code section 1016.5: Motion to Vacate Based on Court’s Failure to Advise of Immigration Consequences
Penal Code section 1016.5 allows persons to move to vacate a prior conviction by way of guilty or no contest plea based on the court’s failure to advise them of three specific immigration consequences during entry of the plea: (1) deportation or removal; (2) exclusion or inadmissibility; or (3) denial of citizenship. A person seeking such relief must show (1) he or she did not receive the required advisement of all three immigration consequences either in a plea form or on the record during entry of the plea; (2) the person actually suffers one or more of these immigration consequences or such consequence is imminent; (3) he or she would not have entered the plea had he or she been advised of such consequences; and (4) he or she filed the request for relief under this statute within a reasonable time after becoming aware of the immigration consequences that flow from the conviction.
Note that when a court grants relief under section 1016.5 by allowing a person to withdraw his or her plea and vacating the conviction, the person is placed in the same position he or she was in at the time of originally entering the plea. That is, he or she will then be able to negotiate a new plea bargain without the negative immigration consequences or dismissal, or proceed to trial on the charge.