Recently, at the San Fernando Courthouse in Los Angeles County our office was able to successfully litigate a post-conviction Penal Code section 1473.7 Motion to vacate our client’s Penal Code section 32, “Accessory After the Fact” conviction from 1994 in which our client was sentenced to serve 365 days in the county jail.
According to our client’s immigration attorney, our client was denied United States citizenship based on this offense because the 365 day jail sentence classifies this offense as an aggravated felony for federal immigration purposes. Specifically, pursuant to Matter of Agustin Valenzuela Gallardo (BIA 2018) 27 I&N Dec. 449, a conviction to Penal Code section 32 with a sentence of 365 days is categorically an aggravated felony offense relating to obstruction of justice that renders a non-citizen removable. Further, pursuant to INA Section 101(f)(8), no person shall be regarded as, or found to be, a person of good moral character, for purposes of qualifying for naturalization, if the person at any time has been convicted of an aggravated felony as defined in Section 1101(a)(43). Thus, our client was not eligible for naturalization because he had been convicted of an aggravated felony and was permanently barred from establishing good moral character.
Our office filed a Penal Code section 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from the 365 day county jail sentence to the offense.
Procedurally, given the Attorney General Opinion in Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019), to have a valid effect in immigration court, our office needed to not only have our client resentenced to 364 days, but we needed the original conviction and sentence to be vacated per Penal Code section 1473.7. At the hearing on the motion, the prosecution agreed to vacate our client’s plea and sentence and allow our client to enter a new plea to the charge with a 364 day sentence. The court then granted the motion and our client entered the new plea to the charge with the modified 364 day sentence.
This is a great result for our client that will allow him to move forward with seeking United States citizenship.
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