Tooby's California Post-Conviction Relief for Immigrants

 

(C)

Vacation Of Judgment By Extraordinary Writ.  Vacating the judgment on a ground of legal invalidity, that was in existence at the time the conviction arose, eliminates any conviction, including a conviction for a drug offense, for immigration purposes. [21]  An effective vacatur may even assist a noncitizen who has already been deported.[22]

 

            (1)  Habeas Corpus.  A common basis for granting a petition for a writ of habeas corpus is a claim that criminal defense counsel did not inform the defendant in advance of the specific immigration consequences of the plea bargain.  Habeas corpus may be used not only to vacate the plea of guilty, but in the alternative to leave the conviction intact, but vacate only the sentence.  This can be particularly useful when the noncitizen needs to reduce the sentence imposed below one year.  The most important reason to do so is to avoid aggravated felony status for those offenses whose immigration effect depends on the sentence imposed. 

 

            In order to use habeas corpus, the defendant must, under most circumstances,[23] be under some form of continuing state restraint such as probation or parole at the time the petition is filed.[24]  Thus, it is essential to file the petition before probation or parole expires.  A nonstatutory motion to vacate may be attempted on constitutional grounds even if the time for habeas corpus has elapsed.[25] 

 

            (2)  Coram Nobis.  A writ of error coram nobis may be granted, in the discretion of the court, if a fact existed that did not go to guilt or innocence, but would have prevented the rendition of the judgment if it had been known at the time.[26]  In 2009, however, the California Supreme Court held that coram nobis may not be used where a defendant was unaware of the actual immigration consequences of the plea, for a number of reasons.[27]  This decision in effect destroyed the usefulness of this remedy for immigrants, except in very limited circumstances. 

 

            (3)  State Advisal Statute.  A statutory motion to vacate the judgment under Penal Code § 1016.5  must be granted if the court did not provide a warning about each of three specific potential immigration consequences, deportation, exclusion, and denial of naturalization, prior to a guilty or no contest plea as required by Penal Code § 1016.5, if there is a reasonable probability the plea would not have been entered if the defendant had been properly advised and became aware of the exact immigration consequences of the plea.[28]  These claims are raised as motions to vacate based on the statute itself.[29]

 

            (4)  Nonstatutory Motion to Vacate.  A nonstatutory motion to vacate the judgment may sometimes be granted on grounds of ineffective assistance of counsel, or any other ground of constitutional error.[30]

 

            (5)  Motion to Withdraw Plea.  If imposition of sentence has been suspended, and probation granted, the defendant may apply within six months of sentence to withdraw the guilty plea "for good cause" under Penal Code § 1018.  This would eliminate the conviction for all purposes.[31]

[21]  The BIA held that a foreign conviction vacated solely for immigration reasons remains a conviction for immigration purposes.  Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).  The Ninth Circuit has also indicated that where a valid conviction is "vacated" solely on compassionate grounds to avoid immigration consequences, the INS need not honor that order. Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[22]  Vacation of judgment eliminates the conviction ab initio.  Under some circumstances, a motion to reopen deportation proceedings based on such an invalid conviction is proper even after the petitioner has been deported.  See Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. § 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal); Estrada‑Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977). See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[23]  Where there is newly discovered evidence of government fraud, misconduct, or perjury, a petition for habeas corpus may be filed even without custody, so long as it is filed within one year of the date on which the evidence was or should have been discovered.  Cal. P.C. § 1473.6(a).  A petitioner may not use habeas corpus where a California conviction provides the sole basis for confinement in a federal deportation proceeding.  People v. Villa (2009), 45 Cal.4th 1063; In re Azurin (2001) 87 Cal.App.4th 20.

[24] § 6.32, infra; Brady, § § 8.25‑8.32.

[25] See § 6.42, infra.

[26] See § 6.39; Brady, § § 8.34‑8.39.

[27] People v. Kim (2009) 45 Cal.4th 1078.

[28] People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.; see Brady, § 8.33.

[29] See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183

[30] See People v. Kim (2009) 45 Cal.4th 1078, 1107 ("In light of this conclusion, we express no opinion as to whether the trial court possessed the inherent power to do so.").  See also Chapter 6(G), infra; Brady, § 8.32A.

[31] See § 6.12, infra; Brady, § 8.23.