How to litigate a Penal Code section 1016.5 "Motion to Vacate" a conviction for an immigrant
This Guide will assist you in identifying the important and practical steps that best serve a defendant who is seeking to vacate a criminal conviction in order to alleviate its immigration consequences.
Initial Investigation and Setting Your GoalIn order to identify which individuals can benefit from Penal Code section 1016.5 relief, you must first confirm your client's immigration status (i.e. non-U.S. citizen). Second, it is useful to speak with the client's immigration attorney to identify what would be an immigration "safe" result. For example, the ultimate result would be to vacate the plea and obtain a dismissal "in the interest of justice", per Penal Code section 1385. However, in the process of litigating a 1016.5 motion, sometimes, a prosecutor will offer to reduce a charge in order to preserve a conviction. A prosecutor may agree to modify a Penal Code section 273.5 conviction to a Penal Code section 242 conviction. Knowing that the client can immigrate successfully with that modified conviction can lead to a negotiated disposition that creates certain immigration relief without risking the uncertainty of submitting the matter to a judge's discretion.
Assessing the Validity of the PleaTo assess whether a plea is valid, it is important to obtain the docket of the plea, the transcript of the plea and any associated Tahl Wiaver forms. These court file documents must be analyzed closely to determine if the three requirements of Penal Code section1016.5 were given, and whether a prosecutor can prove that they were properly given. The three advisements are: that as a result of the plea the individual may be deported, excluded or denied naturalization. Although many pleas are properly taken and adequately preserved, there are many instances where that is not the case, and litigation under 1016.5 is viable. Check back later for more on this topic.