On September 28, 2016, California Governor Jerry Brown signed into law a bill known as AB 813, which will help California immigrants whose previous contact with the criminal justice system has landed them in deportation or removal proceedings.
This law will go into effect on January 1, 2017, added to the state statutes as California Penal Code § 1473.3.
What AB 813 does is to create a new means by which a previously convicted person can go back and vacate a California conviction. Once the person is no longer in prison or criminal custody, the procedure is to file a motion to vacate. The motion will need to allege one of the following:
1) The conviction or sentence is legally invalid due to a a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.
2) Evidence of actual innocence has been newly discovered, which requires vacation of the conviction or sentence.
This law addresses the all-too-common situation in which not only the defendant, but the defendant's attorney has no idea that a certain plea--while it might make sense to avoid a jury trial and possibly more severe sentence--will inevitably lead to deportation proceedings, even for someone who already has a U.S. green card.
Anyone who might be able to make use of this new law will need to act quickly. In order to make a claims based on failure to understand the immigration consequences of a conviction, the applicant will need to file the motion with “reasonable diligence” after the Department of Homeland Security (DHS) has, based on the criminal conviction, issued a Notice to Appear or a final removal order, whichever comes later.
Similarly, anyone filing a motion to vacate based on a claim of new evidence showing innocence must do so without “undue delay” after the date he or she discovered or could have discovered the new evidence.
A convincing motion will need to include not only the defendant's statement, but also any authoritative or objective backup. If, for example, the applicant's criminal defense attorney wrote up a statement that he or she had no idea that the person was from Canada, and therefore did not think to mention immigration consequences, that would be helpful.
After filing such a motion, the applicant is entitled to a hearing. Here, he or she would be expected to testify about the circumstances leading to the plea of guilty or nolo contendere without a full understanding of the immigration consequences; or about the new evidence.