Penal Code section 1473.7 became effective on January 1, 2017 and provides a procedure for people no longer in criminal custody to file a motion to vacate a conviction or sentence. A motion pursuant to Penal Code section 1473.7 can be made on either of the following two grounds: (1) a prejudicial error damaged 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, or (2) newly discovered evidence of actual innocence.
This motion may provide immigration relief for defendants that failed to meaningfully understand the immigration consequences of a conviction and are now suffering immigration prejudice.
There are timing requirements to litigate a Section 1473.7 motion. A motion pursuant to Penal Code section 1473.7 must be filed with “reasonable diligence” after the defendant has received a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order becomes final.
Upon granting a motion pursuant to Penal Code section 1473.7, the plea will be vacated and the conviction will no longer exist. After the conviction is vacated under this Section, the defendant may still need criminal representation to seek a dismissal, set the matter for a jury trial, or negotiate an alternate plea agreement that does not cause immigration consequences.
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