Criminal Immigration Relief: What is the Difference Between a Penal Code section 1473.7 Motion and a Penal Code section 1016.5 Motion?

Recent immigration “crackdowns” by the federal government have caused undocumented immigrants living in California to worry for their security and potential deportability. According to President Trump’s Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” undocumented immigrants with prior criminal records have been deemed an “enforcement priority” for deportation, exclusion from admission to the United States and denial of naturalization. Undocumented immigrants with prior convictions for aggravated felonies, crimes involving moral turpitude and controlled substances offenses may face adverse immigration consequences as a result of prior criminal convictions.

The California Legislature has enacted two Penal Code sections (Penal Code section 1473.7 and Penal Code section 1016.5) that can potentially provide a procedure for vacating convictions that are currently causing defendants immigration consequences.

Penal Code section 1016.5 Motion

According to the California Legislature, prior to the enactment of Penal Code section 1016.5, many non-citizen defendants were entering pleas to criminal offenses without knowing that these offenses were grounds for deportability, inadmissibility, and denial of naturalization. Penal Code section 1016.5 was enacted with the intent of advising non-citizen individuals of the “special circumstances” that may result from their plea.

A Penal Code section 1016.5 motion can be filed if the court fails to advise a defendant of the immigration consequences that may result from a plea (or fails to maintain a record that it did so). If a defendant’s Penal Code section 1016.5 motion is granted, the court must vacate the judgment and permit the defendant to withdraw his or her plea. Then, the defendant has an opportunity to enter a plea of not guilty and negotiate with the prosecution for an immigration neutral offense, a dismissal, or take the case to trial.

Penal Code section 1473.7 Motion

Penal Code section 1473.7 was recently enacted by the California Legislature and took effect on January 1, 2017. Penal Code section 1473.7 allows a defendant who is no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence if they can show the conviction or sentence is legally invalid “due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea to guilty or nolo contendere.”

Under a motion pursuant to Penal Code section 1473.7, a defendant may have been provided the mandated advisement regarding immigration consequences pursuant to Penal Code section 1016.5 but can still make a showing that they failed to meaningfully understand those consequences - requiring the plea to be vacated.

Relief under both of these motions will vacate the former plea/conviction and allow a defendant to negotiate to immigration neutral charges, obtain a dismissal, or take the case to trial.

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