What is a Penal Code section 1016.5 Motion?

Are you facing harsh immigration consequences such as deportation, exclusion from admission to the United States, or denial of naturalization due to your criminal conviction? Penal Code section 1016.5 motions provide relief to clients suffering immigration prejudice as a result of being inadequately advised of the immigration consequences of their plea.

A Penal Code section 1016.5 motion provides relief for persons not adequately advised of the potential immigration consequences of a plea. Penal Code section 1016.5 requires that specific immigration advisements be given to every person who enters a plea. If the defendant was not advised at the time of the plea that the consequences of the plea could result in: deportation, exclusion from admission to the United States, or denial of naturalization, the conviction must be vacated. A motion may be brought under this section if there was a failure by the trial court to deliver this advisement, or maintain a record that it did so!

Generally, in order to be eligible for relief, the person must show: (1) they did not receive a proper advisement of immigration consequences, and (2) they were prejudiced by the failure to provide the complete advisement. Prejudice can be shown by demonstrating one (or more) of the immigration consequences is affecting the person.

If the motion were to succeed, the plea would be vacated and the person would have an opportunity to consider, bargain for, and plea to an alternative immigration-friendly offense or seek a jury trial.


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