Post-Conviction Relief! Felony Health and Safety Code section 11351 Possession for Sale Offense Vacated Per Penal Code § 1473.7 Motion and Renegotiated to an Immigration Neutral Plea!

Recently, in Los Angeles County at the Norwalk Courthouse our office successfully litigated a Penal Code § 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 2002 Health and Safety Code section 11351 felony conviction.

Our client is a lawful permanent resident and was served with a notice to appear in removal proceedings based, in part, on his conviction in this matter in 2011. The Department of Homeland Security alleged that our client was removable from the United States for having been convicted of an aggravated felony relating to the drug trafficking offense.

Prior to hiring our office, our client had hired other defense counsel to litigate a motion seeking post-conviction relief. This motion was denied, and our client was placed in custody of the Department of Homeland Security until he was able to post bond. Our client has been fighting removal since 2011. According to his immigration attorney, had he pled to a Health and Safety Code section 11352 offense (without specifying the drug), he would have been eligible for discretionary relief under cancellation of removal for lawful permanent residents in immigration court.

Our client then hired our office to determine whether post-conviction relief may be available to him. Our office requested the court file in this matter and determined that at the time of his plea our client was advised via a written waiver form that his conviction will have immigration consequences. Despite being advised sufficiently under Penal Code section 1016.5, our client was unaware that by pleading to Health and Safety Code section 11351 his offense would be considered an aggravated felony and he would be ineligible for discretionary relief from removal. We determined that our client had facts sufficient to support an argument under Penal Code section 1473.7.

In our motion, we argued that had our client known about the direct immigration consequences of his plea, he would have sought to negotiate an immigration neutral disposition. We argued that, for example, had our client pled to Health and Safety Code section 11352 (transportation for personal use) without specifying the drug, he would have been eligible to cancellation of removal and he would not be facing the immigration consequences he is currently suffering from.

Prior to filing the motion, we presented the prosecution with an equities package showing that our client was only 18 at the time of the conviction and has had no other felony convictions since this offense. We presented evidence that our client had a full-time job as a foreman of a construction company, is a member of a union, and committed to serving his community.

At the final hearing on the motion and after strenuous negotiation with the prosecution, the prosecution agreed to amend the Complaint to add a Health and Safety Code section 11352 offense. The motion pursuant to Penal Code section 1473.7 was granted, the Health and Safety Code section 11351 offense was vacated, and our client entered a plea to the newly amended immigration neutral safe plea (Health and Safety Code section 11352 without specifying the drug and limited to transportation for personal use), with credit for time served.

With this result, our client should be eligible for cancellation of removal! This is an amazing result!

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The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar & Avila, LLP or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.

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