Los Angeles County – Van Nuys Courthouse - Penal Code § 1473.7 Motion to Vacate Health & Safety Code section 11359, Conviction Granted and Dismissed Per Penal Code Section 1385!

Recently, in Los Angeles County at the Van Nuys Courthouse I successfully litigated a Penal Code § 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 1996 Health & Safety Code § 11359 felony conviction.

We began handling this client’s matter by investigating what, if any, post-conviction relief may be available for our client. After obtaining all documents relating to the record of conviction, we believed the first step would be to petition for re-designation of our client’s felony offense to a misdemeanor pursuant to Penal Code section 11361.8 (Prop 64). Our client’s Prop 64 petition was granted in August of 2017 and his offense was reduced to a misdemeanor.

Next, we determined that our client may be eligible for relief pursuant to Penal Code section 1473.7. According to the docket in this matter, our client was advised that conviction of the offense “may” have immigration consequences. However, we argued in our motion that he was never advised that his conviction was a crime involving controlled substances and, as such, the immigration consequences of his conviction were a certainty.

We supplemented our motion with a declaration from our client’s immigration attorney stating that this conviction is considered an “aggravated felony” for federal immigration purposes and is prohibiting our client from filing a family based petition to obtain permanent residency. Our client’s immigration attorney explained how the conviction has rendered him inadmissible and he can be placed in immigration proceedings at any moment as a result of his conviction in this case.

Prior to the hearing on the motion, we provided the prosecution with an equities package detailing the young age of our client at the time of the offense and the fact that he has had no other criminal convictions other than the present offense. We detailed our client’s extensive work history and his dedication to his wife and children.

At the hearing on the motion, the district attorney was persuaded by our argument and submitted on the motion. The judge granted the motion and dismissed the offense in the interests of justice pursuant to Penal Code section 1385.

This victory will bring our client one step closer to filing for permanent residency and having the opportunity to remain in the United States to care for his wife and two children.

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