Criminal Defense of Immigrants
§ 6.50 B. After Deportation
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POST CON RELIEF - PRESENCE OF DEFENDANT AT HEARING
There is generally no requirement that a defendant be within the United States for the criminal court to adjudicate a motion to vacate a conviction. The defendant, however, must generally be present at a new felony plea (after the conviction has been vacated), although the court often has discretion to proceed without the defendant. See, e.g., California Penal Code 977. Immigration counsel can try to get the defendant paroled into the United States to attend the post-conviction hearing. Post-conviction hearings are often conducted without the presence of the defendant unless the defendant's presence is required for an evidentiary hearing. Very often no evidentiary hearing is held because the facts are not in dispute and it is a legal issue. Some states allow the court to decide a motion on declarations without an evidentiary hearing, even if the People request to cross-examine the moving party. See, e.g., People v. Superior Court (Zamudio), 23 Cal.4th 183, 999 P.2d 686 (2000). That is no guarantee that the judge would not require the client to testify.