Penal Code 1473.7: Vacating a Conviction for Immigration Purposes

Rodriguez Law Firm

Obtaining lawful permanent residence or U. S. citizenship is extraordinarily difficult if not impossible with a criminal record. But an experienced post-conviction relief attorney may be able to reverse your criminal conviction that adversely affect lawful status or the ability to become a U.S. citizen. Under Penal Code 1473.7, you may be able to remove the adverse immigration consequences and keep your permanent resident status and/or allow you to become a U.S. citizen.

Who Can Benefit from Penal Code 1473.7?

If you are an immigrant and is considering filing a motion to withdraw your criminal conviction you must file a motion with the same court that took your guilty plea. You can file under Penal Codes section 1473.7 if you are no longer in custody or on probation. The court will only grant your request to vacate a conviction if you can prove that you:

  1. Agreed to plead guilty based on misadvise from your attorney and/or without a meaningful understanding of your ability to defend against or knowingly accept the adverse immigration consequences of a conviction; or
  2. Have new evidence that proves you were actually innocent.

The law requires that a person exercise reasonable diligence and file a 1473.7 motion (also called a Padilla motion) without any undue delays after receiving a notice to appear before an immigration judge or when you first learned of the adverse immigration effects. In other words, you should file a motion to vacate your criminal conviction as soon as you learn that it has affected your lawful status, the ability to apply for a green card, or become a U.S. citizen.

Once the motion has been filed with the Superior Court, you are entitled to a hearing. However, the court has the option to grant or deny your request for a hearing based on the pleadings and supporting documents filed by your attorney and the prosecution. As the moving party, you have the burden of proof and the court will expect you to show by a preponderance of the evidence that your rights were violated due to misadvise or legal error caused by your former defense attorney.

What Happens After a Judgement Is Vacated?

If the court grants your request to withdraw your guilty plea, the court will then vacate your conviction and it will appear as though the conviction never occurred.

Contact the Rodriguez Law Firm for Additional Support

Immigration is one of the most complex and ever-changing fields of law. If you have a criminal record you will need to overcome additional hurdles before acquiring a visa, permanent residency, or citizenship status. Fortunately, attorney John R. Rodriguez at the Rodriguez Law Firm has represented many noncitizens with lawful status and who are undocumented. We believe in protecting your rights and that you deserve a right to build a better future for yourself and your family. We want to be your dedicated legal advocate during your time of need.

For a consultation, call our firm at (619) 332-1703 today.

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