Post-Conviction Relief! Health and Safety Code section 11352(a) Sale or Transportation of a Controlled Substance Offense Vacated Per Penal Code § 1473.7 Motion and Re-Negotiated to Immigration Neutral Plea!

Recently, in Los Angeles County at the Compton 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 1983 Health and Safety Code section 11352(a) conviction for sale or transportation of a controlled substance.

At the time that our client hired our office, Immigration and Customs Enforcement was in the process of repatriating him to his home country of Cuba. Our client hired our office to seek post-conviction relief on his behalf. After reviewing the court file and obtaining all documents still in existence relating to the plea, we discovered that according to the transcript of the plea our client was provided the following immigration advisement:

“You also should understand if you’re a citizen of the United States, a plea to this charge could result in your deportation, your not being allowed to return into the United States legally. It could affect your ability to become a naturalized citizen.”

We argued that the immigration advisement provided to our client was incorrect, misleading, and confusing. Our client was wrongly advised that the immigration consequences would only result if he was a United States citizen. The correct advisement pursuant to Penal Code section 1016.5 is that immigration consequences could result if he is not a United States citizen. We argued in a joint Penal Code section 1016.5/1473.7 motion that this advisement failed to meet the statutory requirements of Penal Code section 1016.5.

We argued in the alternative that this confusing and incorrect advisement led our client to fail to meaningfully understand the immigration consequences of his conviction pursuant to Penal Code section 1473.7. We further argued that he should have been advised that the conviction will cause immigration consequences, not could.

Our client has been denied lawful permanent resident status as a result of this conviction and was facing repatriation to Cuba.

After extensive and arduous negotiation in this matter, the prosecution agreed to allow our client to withdraw his plea to the controlled substance offense and re-enter a plea to Penal Code section 32. With this result, our client will be able to seek relief from repatriation.

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