On Sept. 28, 2016, Penal Code §1473.7 was signed into law, which creates a new motion to vacate or modify a criminal conviction or sentence. This motion may be made on two general grounds, (1) any prejudicial error that damaged the defendant’s ability to knowingly accept or defend against actual or potential immigration consequences, or (2) newly discovered evidence that can prove actual innocence of the conviction or sentence.
This motion can be utilized to reduce the original conviction or sentence or it may be utilized to vacate a conviction or a sentence completely. Both of these options would prevent immigration consequences. This motion may be made at any point after a final judgment is given on a particular conviction or sentence so long as the party seeking the motion does so with due diligence after that point.
An immigrant with a criminal conviction can file a motion to vacate on any prejudicial error that damaged the defendant’s ability to meaningfully understand the immigration consequences of the conviction or sentence before defending or knowingly accepting them. Some common examples of prejudicial errors may include:
- ineffective assistance of counsel
- ineffective translation of immigration consequences
- invalid waiver of right to counsel
An immigrant may also be eligible to file a motion to vacate based on newly discovered evidence that was not previously discovered and of which proves their innocence for said conviction or sentence.
This new law allows a wide range of immigration possibilities for those who were previously ineligible and deportable based on a criminal conviction. If you are an immigrant who has faced immigration consequences as a result of a previous conviction and would like more information on whether this new law positively affects your immigration abilities, contact our expert immigration attorneys today at (855) 519-3970.