Post-Conviction Relief! Felony Penal Code §32 “Accessory After the Fact” Offense Vacated Per Penal Code § 1473.7 Motion and Sentence Renegotiated to Immigration Safe Sentence

Recently, at the San Fernando Courthouse in Los Angeles County our office was able to successfully litigate a post-conviction Penal Code section 1473.7 Motion to vacate our client’s Penal Code section 32, “Accessory After the Fact” conviction from 1994 in which our client was sentenced to serve 365 days in the county jail.

According to our client’s immigration attorney, our client was denied United States citizenship based on this offense because the 365 day jail sentence classifies this offense as an aggravated felony for federal immigration purposes. Specifically, pursuant to Matter of Agustin Valenzuela Gallardo (BIA 2018) 27 I&N Dec. 449, a conviction to Penal Code section 32 with a sentence of 365 days is categorically an aggravated felony offense relating to obstruction of justice that renders a non-citizen removable. Further, pursuant to INA Section 101(f)(8), no person shall be regarded as, or found to be, a person of good moral character, for purposes of qualifying for naturalization, if the person at any time has been convicted of an aggravated felony as defined in Section 1101(a)(43). Thus, our client was not eligible for naturalization because he had been convicted of an aggravated felony and was permanently barred from establishing good moral character.

Our office filed a Penal Code section 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from the 365 day county jail sentence to the offense.

Procedurally, given the Attorney General Opinion in Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019), to have a valid effect in immigration court, our office needed to not only have our client resentenced to 364 days, but we needed the original conviction and sentence to be vacated per Penal Code section 1473.7. At the hearing on the motion, the prosecution agreed to vacate our client’s plea and sentence and allow our client to enter a new plea to the charge with a 364 day sentence. The court then granted the motion and our client entered the new plea to the charge with the modified 364 day sentence.

This is a great result for our client that will allow him to move forward with seeking United States citizenship.

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 Law, APC 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.