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Vacating Criminal Convictions and Immigration Law

Under California Penal Code 1473.7 PC, people who have received a conviction and are no longer in criminal custody can file a motion to vacate a judgment in a criminal case. The motion can be based on two instances, predjudicial error or newly discovered evidence demonstrating actual innocence.

Under prejudicial error, it must be found that the defendant’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”).

On January 1, 2017, Penal Code ยง 1473.7 came into effect. Previously, a conviction or sentencing could not be challenged once the convicted person was released. When someone is in custody–either jail, prison, probation or parole–a writ of habeas corpus is permissible in challenging the prior rulings of the case. Prior to PC 1473.7, there was no means of going back to erase a criminal conviction, regardless of whether the defedant understood immigration implications of a plea agreement or if the key witness(es) recant testimony.