Health & Safety Code section 11351 Offense Vacated - Penal Code section 1473.7 Motion Granted

A client recently hired our office to assist him in obtaining post-conviction relief for his 1991 Health & Safety Code § 11351 (Possession of Cocaine for Sale) felony offense. When our client hired our office, he had been in deportation proceedings for over five years and had received a final order of deportation based, in part, on his controlled substance conviction. After dedicated investigation and advocacy, our office was able to negotiate with the prosecution to vacate the plea pursuant to Penal Code section 1473.7 and allow our client to plea to Penal Code section 32, an immigration neutral offense, in the alternative.

In our Penal Code section 1473.7 motion, we argued that our client failed to meaningfully understand the immigration consequences of his conviction because he was not informed that by pleading to a controlled substance offense he would be deported, excluded from admission to the United States or denied naturalization. We argued that had our client meaningfully understood the certainty of the immigration consequences he faced, he would have attempted to negotiate to an immigration safe offense or taken his case to trial.

At the first hearing on our motion, the motion was denied without prejudice and the court indicated that it wanted more documentation showing that our client had not suffered any prior convictions since this offense, and that this offense was in fact a basis for his deportation order.

Our office obtained the requested documentation and filed a motion to reconsider the motion pursuant to Penal Code section 1473.7. Our office submitted a substantial equities package to the prosecution and the prosecution submitted on our motion. Based on the updated documentation provided to the court, the court reconsidered its former ruling and the motion was granted – vacating the plea.

When our client hired our office, he was facing immediate deportation set for March 6, 2018. With the relief obtained in this matter, our client now has the opportunity to petition for suspension of deportation or special rule cancellation of removal under NACARA and attempt to remain in the United States with his family.


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