Several posts on this site discuss how to withdraw a plea in Los Angeles Criminal Court to help immigrate to the US or obtain “legal” status in the US, such as DACA, Asylum, Permanent Residency, or U.S Citizenship. A plea withdrawal has to be done using one of the methods that will guarantee acceptance in immigration court in compliance with In the Matter of Pickering, 23 I&N Dec. 621, 624 and In the Matter of Thomas and Thompson, 27 I&N Dec. 674, 676. In California, such plea withdrawals are accomplished using either Penal Code 1016.5 or Penal Code 1473.7.
A Penal Code section 1016.5 motion can be filed when there is no evidence that you were told of specific 3 immigration consequences during the plea. These are:
- A possibility of deportation because of the plea
- A possibility of denial of re-entry to the US because of the plea
- A possibility of denial of Citizenship because of the plea.
A Penal Code section 1473.7 motion can be filed for a conviction that resulted from 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.
In so far, Penal Code 1473.7 is usually a much better argument to make to withdraw the plea because the case law supports a very broad spectrum of errors. For example (1) the attorney actually misinformed the defendant (2) the defendant made his own mistake in accepting the plea by misunderstanding the consequences of the plea.
PROCEDURE IN LITIGATING THE MOTION
Los Angles Criminal Defense Attorney in our firm usually will file a combined motion under both code sections and set it on the court’s calendar. Once the motion is filed, a post-conviction attorney will reach out to the prosecutor in an attempt to reach a settlement. If the settlement discussion fails, then Los Angeles criminal defense attorney will litigate the motion in court. However, often, a settlement can be reached with the DA or CA office when a motion is granted and the plea is withdrawn and vacated and the defendant enters a plea to a different charge or is sentenced to a different sentence.
For example, if you have a conviction for a theft-related offense, Los Angeles post-conviction attorney can file a motion arguing that you did not understand the full immigration consequences of such a plea and ask for a plea to be withdrawn. Then, prior to litigating such a motion, a Los Angeles post-conviction attorney will approach a prosecutor and offer for the defendant to enter a plea to a different charge, such as a charge of burglary, a violation of California Penal Code section 459. A violation of California Penal Code section 459 does not carry immigration consequences because the definition of California’s crime of burglary involves conduct that is not considered deportable. A burglary in California is a violation of Penal Code 459 and is defined as entering certain locations with intent to commit grand or petit larceny or any felony. California burglary does not require entry to be unlawful. Thus, any petty theft is most often a burglary.
Descamps v. United States, 570 U.S. 254
Immigration cases use the “categorical approach” to conviction analysis. The federal court will not consider a conviction if it is broader than the general definition of a crime. Because California does not require unlawful entry, the immigration courts do not consider California burglary a conviction for a deportable or inadmissible crime. Because California cases show convictions for burglary based on lawful entry (PC 459), Descamps explains that California burglary does not match the general description of burglary, making it an immigration-safe plea. No conviction of § 459 is a categorical
match with “burglary.” The statute is overbroad. Thus, Descamps allows and is a great precedent allowing using PC 459 even for immigration cases from other jurisdictions.
EXAMPLE: recently Los Angeles Criminal Defense Attorney handled a case in which a defendant was deportable due to a conviction involving sex with a minor. After filing the motion, Los Angeles criminal defense attorney was able to replead his client to burglary, which is not a deportable offense that will help the client keep his permanent resident (Greencard) status.
Please call the Los Angeles Criminal Defense attorney right away to help you figure out a way to stay in the US. We will provide quality representation at an affordable price and will litigate such a motion to help you get documents.