Post Conviction Immigration Relief – Los Angeles Criminal Cases
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Immigration-Safe Pleas and Motions to Vacate Convictions Under California Penal Code §1473.7
As a Los Angeles criminal defense attorney, one of the most critical parts of protecting a non-citizen client is ensuring that a plea is “immigration-safe.” Many immigrants in California have found themselves in removal (deportation) proceedings years after taking a plea deal they did not fully understand. Fortunately, under California Penal Code §1473.7, you may have a legal right to vacate your conviction if your prior attorney failed to properly advise or negotiate an immigration-safe plea.
Legal Background: Padilla v. Kentucky and People v. Bautista
The U.S. Supreme Court in Padilla v. Kentucky (2010) held that a defense attorney provides ineffective assistance of counsel when they fail to advise a non-citizen client about the immigration consequences of a guilty plea. Similarly, in People v. Bautista (2004), California courts emphasized that an attorney must attempt to negotiate an immigration-safe plea whenever possible.
If your attorney did not discuss the immigration consequences of your plea—or failed to negotiate a plea that avoided immigration harm—this may constitute incompetent representation. Such failures can be grounds to vacate your conviction under Penal Code §1473.7(a)(1).
What Is a Motion to Vacate Under Penal Code §1473.7?
California Penal Code §1473.7 allows a person who is no longer in criminal custody to file a motion to vacate their conviction when the plea was entered without understanding the immigration consequences or due to ineffective legal representation.
If you are now facing deportation, denial of a green card, or loss of immigration benefits because of an old conviction, this motion can give you a second chance to clear your record and protect your immigration status.
Failure to Negotiate an Immigration-Safe Plea
Even when a defense attorney discusses immigration consequences, they still have a duty to negotiate a plea that minimizes or avoids those consequences. For example, an attorney should try to secure a plea that results in deportability rather than an “aggravated felony,” since aggravated felonies carry far more severe immigration consequences.
So counsel has to consider an alternative plea strategy that is not to an aggravated felony.
In cases where the prosecution refuses to offer a safe plea, the defense attorney can still argue that the plea should be withdrawn when the immigration penalties are extremely harsh or disproportionate, such as when the conviction eliminates all forms of immigration relief.
Example: Fraud and the $10,000 Loss Rule
Consider a conviction for fraud. Fraud is already a crime involving moral turpitude, which can make a person deportable. However, when the loss to the victim exceeds $10,000, the conviction is classified as an “aggravated felony” under federal immigration law.
This distinction is crucial:
- A conviction for fraud with a loss under $10,000 might make you deportable but still eligible for immigration relief.
- A conviction for fraud with a loss over $10,000 is an aggravated felony, permanently barring you from relief such as asylum or cancellation of removal.
An effective defense attorney should negotiate the loss amount or plea wording to avoid the aggravated felony designation—sometimes by changing the charge (for example, to burglary or another non-aggravated offense) or by stating losses similar to the Najhawan case law.
If your attorney failed to pursue such a strategy, this may be a valid basis to vacate your conviction under Penal Code §1473.7.
How to File a Penal Code §1473.7 Motion
To win a motion under §1473.7, your attorney must show that:
- You did not meaningfully understand the immigration consequences of your plea; and
- You would not have taken the plea had you known about those consequences.
You do not need to be in custody or on probation to file this motion. Even if your case was completed years ago, you may still qualify if you are now facing immigration consequences.
A strong motion will include:
- A declaration explaining your understanding at the time of the plea,
- Evidence showing your attorney failed to advise or negotiate properly, and
- Proof of immigration harm (e.g., denial of a visa, green card, or deportation order).
Why Choose a Los Angeles Criminal Defense Attorney Experienced in Immigration Consequences
Not all criminal defense attorneys understand the intersection of criminal and immigration law (“crimmigration”). At the Law Offices of Alex Andryuschenko, we specialize in post-conviction relief and motions to vacate convictions under Penal Code §1473.7.
We have successfully helped many non-citizen clients protect their legal status and remain in the United States by reversing old convictions that were entered without proper advice or negotiation.
Contact a Los Angeles Post-Conviction Attorney
Call today at (323) 464-6424 for a confidential consultation and take the first step toward protecting your future and your immigration status.
If you or a loved one is facing immigration problems due to an old California conviction, contact a Los Angeles criminal defense attorney experienced in Penal Code §1473.7 motions.
We can help evaluate your case and determine whether your conviction can be vacated based on your attorney’s failure to negotiate an immigration-safe plea.
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