New Cases For Motion To Withdraw Plea For Immigration Consequences in California: PC 1473.7 (Bent v. Garland)
By: Alex Andryuschenko, Criminal Defense & Post-Conviction Relief Attorney in Los Angeles.
New Law Shows How A Vacated Conviction Can Save You from Deportation:
By: Alex Andryuschenko, Criminal Defense & Post-Conviction Relief Attorney in Los Angeles
In a major victory for immigrants fighting deportation, the Ninth Circuit Court of Appeals recently ruled that vacating a criminal conviction based on a constitutional violation can provide a powerful basis to reopen deportation (removal) proceedings—even after the deadline has passed.
The case, Bent v. Garland (2024), shines a spotlight on a critical tool for non-citizens: California Penal Code § 1473.7, which allows individuals to challenge old convictions that were the result of an involuntary plea, often due to not being properly advised of immigration consequences.
As a criminal defense attorney in Los Angeles, I regularly help immigrants clean up old records and fight deportations, denial of reentry, or denial of citizenship applications. This new decision is a game-changer for many people who believed it was too late to fight actual or possible deportation.
Case Background: A Long-Term Resident Faces Deportation
Claude Stephen Bent, a lawful permanent resident since 1980, was convicted in 2006 of attempted murder in California. At the time, he pleaded no contest without fully understanding that his plea could lead to deportation. That detail is critical and must be proved USUALLY BY FILING A DECLARATION FROM DEFENDANT STATING WHY AND HOW IT IS THAT HE DID NOT UNDERSTAND IMMIGRATION CONSEQUENCES. Los Angeles Criminal Defense Attorney will help clients prepare declarations for such a motion – this declaration usually will be on many pages, describing also prejudice and even some mitigation.
In the case of Claude Bent, he served over 10 years in prison and was then picked up by ICE and placed in removal proceedings based solely on that conviction. Despite years of legal battles, he ultimately lost his case at the Board of Immigration Appeals (BIA).
But then Bent did something important: he filed a motion under Penal Code § 1473.7(a)(1) to vacate his old conviction, arguing that his plea was not entered voluntarily because he didn’t understand the immigration consequences. California Superior Court agreed and vacated the attempted murder conviction, finding it violated Bent’s Fifth Amendment rights to Counsel.
However, the BIA refused to reopen the deportation proceeding, stating that the 1473.7 motion was filed and litigated for immigration purposes. This “for immigration purposes” relief will not, in the eyes of the federal government, remove the basis for the separation. So a person who, under California law, does not have a conviction will be deported based on the Matter of Pickering case that dealt with a vacated conviction of a Canadian national.
The Problem: BIA Misunderstood California Law
Bent then filed a motion to reopen his removal case based on the vacated conviction. The BIA denied his motion, claiming:
- It was filed too late (outside the 90-day window motion to reopen), and
- The conviction was vacated only to help with immigration, which the BIA viewed as a “rehabilitative” purpose that does not erase the conviction for immigration purposes (Matter of Pickering and Thomas, and Thompson).
This reasoning was flat-out wrong, and on the 9th circuit level, the federal government had to agree to send the case back to the BIA to correct its mistake, and that PC 1473.7 is not a law to mitigate collateral immigration consequences but a law to address a constitutional defect.
The Ninth Circuit Steps In: A Rare Agreement
In a rare legal twist, both the immigrant and the government asked the Ninth Circuit to remand the case, admitting the BIA made legal errors. The Ninth Circuit agreed and issued a powerful opinion on August 15, 2024, emphasizing:
- Section 1473.7 is not a “rehabilitative” law. It allows convictions to be vacated when the plea was not constitutionally valid.
- The California court vacated Bent’s conviction because his plea was involuntary and violated the Constitution, not to help with immigration. That matters because only substantive vacaturs (based on legal error) remove the conviction for immigration purposes.
- The BIA also applied the wrong standard for equitable tolling. Instead of looking at whether Bent acted diligently after learning about his immigration issues (in 2016), the BIA unfairly penalized him for not acting sooner, even while he was in prison.
What This Means for You
This case matters for thousands of immigrants in California who face or have faced deportation based on convictions they didn’t fully understand. If you:
- Pleaded guilty in a California criminal case without understanding the immigration consequences,
- Are now facing removal or have a prior deportation order,
- Or were denied relief because a conviction was still on your record,
…you may be able to challenge that conviction and reopen your immigration case.
California Penal Code § 1473.7(a)(1) allows people who are no longer in custody to vacate a conviction if they can show they didn’t “meaningfully understand, defend against, or knowingly accept” the immigration consequences of their plea. If successful, your deportation case could be reopened and terminated.
Why Timing Matters: Equitable Tolling Can Save Your Case
Normally, motions to reopen must be filed within 90 days of a final order. But this case confirms that courts may toll (pause) that deadline if:
- You acted diligently once you knew something was wrong (e.g., you got a Notice to Appear from immigration),
- And you faced extraordinary circumstances—like being in prison, detained, or without access to legal help.
This means it’s not too late—even if your immigration case ended years ago—if you move quickly now.
Take Action: Speak with a Los Angeles Criminal & Immigration Defense Attorney
If you or someone you love is a non-citizen with a past conviction in California, don’t assume it’s too late to fix it. I help clients vacate old convictions under § 1473.7, file motions to reopen, and protect against deportation.
We Will Provide Free case review
Bilingual Russian-English service available
Flat fees for most post-conviction relief motions
Call Los Angeles Criminal Defense Attorney Alex Andryuschenko at (323) 464-6424 or
Email [email protected] to schedule a consultation
Conclusion
The Ninth Circuit’s ruling in Bent v. Garland offers real hope for immigrants with old convictions. If you didn’t understand your rights back then, you can still fight back now.
Don’t wait. Every day matters.
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