California Gives Immigrants Facing Deportation or Exclusion A Means to Withdraw Criminal Convictions

In passing Assembly Bill 813, California has now joined 44 other states nationwide in allowing a person who has suffered a criminal conviction to challenge that conviction, even though he or she is no longer in custody.

The new statutes allows relief based on 1) a claim of actual innocence; and 2) failure to fully understand the consequences of the plea.

Although the statute applies to both citizens and non-citizens, in practice, this statute is expected to allow immigrants to seek relief for past convictions which hold devastating immigration consequences.

Currently, immigrants convicted of certain crimes face deportation or exclusion from reentry because of those convictions. This bill will allow those who were not sufficiently advised of the immigration consequences of their pleas to withdraw those pleas. A petitioner must only prove that he was not sufficiently advised by "a preponderance of the evidence," which is a lower threshold than the "beyond a reasonable doubt" standard required for a criminal conviction.

This bill allows a litigant to file this motion soon after they either receive a notice to appear in immigration court, any notice from immigration authorities, or a removal order. Many questions, however, remain. Because the bill does not specifically address the rights of those who are not under the jurisdiction of an immigration court, it is unclear which avenues exist for those petitioners. (As the bill applies to persons who are both "citizens" and "non-citizens," it has to provide access to citizens, who will never be subjected to the jurisdiction of the immigration court.) Further, once a plea is successfully withdrawn, the case does not disappear. Prosecuting agencies still retain the right to prosecute the offense and the case will need to be either litigated or subjected to a new disposition. Nonetheless, California residents now have a means of challenging convictions which they did not have before.