This article will assist you in identifying the important and practical
steps that best serve a defendant who is seeking to vacate a criminal
conviction in order to alleviate its immigration consequences.
Initial Investigation and Setting Your Goal
In order to identify which individuals can benefit from Penal Code section
1016.5 relief, you must first confirm the individual’s immigration
status (i.e. non-U.S. citizen). Second, it is useful to speak with the
person’s immigration attorney to identify what would be an immigration
"safe" result. For example, the ultimate result would be to
vacate the plea and obtain a dismissal "in the interest of justice",
per Penal Code section 1385. However, in the process of litigating a 1016.5
motion, sometimes, a prosecutor will offer to reduce a charge in order
to preserve a conviction. A prosecutor may agree to modify a Penal Code
section 273.5 conviction to a Penal Code section 242 conviction. Knowing
that the defendant can immigrate successfully with that modified conviction
can lead to a negotiated disposition that creates certain immigration
relief without risking the uncertainty of submitting the matter to a judge's
Assessing the Validity of the Plea
To assess whether a plea is valid, it is important to obtain the docket
of the plea, the transcript of the plea and any associated Tahl Wiaver
forms. These court file documents must be analyzed closely to determine
if the three requirements of Penal Code section1016.5 were given, and
whether a prosecutor can prove that they were properly given. The three
advisements are: that as a result of the plea the individual may be deported,
excluded or denied naturalization. Although many pleas are properly taken
and adequately preserved, there are many instances where that is not the
case, and litigation under 1016.5 is viable.
Assessing the Likelihood of Success in Litigating the Motion
If there is no record of the plea, there is obviously strong merit to the
motion. However, in many instances, there are records of partial advisements
or mis-advisements and the final ruling on the case may be uncertain.
Other factors to consider are: the nature of the original criminal conduct,
the age of the conviction, the character and rehabilitation of the client
since the crime, and the political disposition the prosecutor and the
judge. All of these factors contribute to the ultimate success or failure
of the motion.
Litigating the Penal Code Section 1016.5 Motion
Under Penal Code section 1016.5, if there is no record of the immigration
consequence advisement, it "shall be presumed" that the advisement
was not given. The prosecutor then has the burden to prove it was properly
given. If the prosecutor fails to establish that the advisement was properly
given, then the plea must be vacated. The defendant must be prepared to
establish that he/she has suffered prejudice as a result of the plea (i.e.
that he/she is suffering a detrimental consequence in his/her immigration
status eligibility). Also, the defendant must be prepared to establish
that, had they known of the immigration consequence of the plea, they
would not have accepted the plea agreement and they would have fought
to seek an immigration "safe" plea. Lastly, the defendant must
be prepared to justify any delay that transpired prior to litigating the
motion (e.g. the defendant recently became aware of the immigration consequence
upon returning from travel abroad and was detained by immigration officials).
These points can be established by the defendant's testimony or written
declaration at the hearing.
Perfecting the Record
Upon receiving a favorable ruling to vacate the conviction, and upon obtaining
a dismissal per Penal Code section 1385 or 1382, be sure to obtain a certified
copy of the updated docket or a certified written order so that the defendant
may present the updated status of the case to immigration officials.