Understanding Motions to Vacate in California: A Lifeline for Immigrants Facing Criminal Convictions
What is a Motion to Vacate?
A motion to vacate is a formal request asking the court to vacate (overturn), set aside or withdraw a criminal conviction or sentence. It is typically filed when there were legal errors, violations of rights, or other significant issues that affected the outcome of the case. For non-citizens, a successful motion can eliminate immigration consequences linked to the conviction.
Understanding Penal Code Section 1473.7
Originally passed in 2016 and later amended in 2018, Penal Code Section 1473.7 was designed to help individuals—primarily non-citizens—seek post-conviction relief when a guilty plea was made without proper advice of the immigration consequences. You do not need to be in immigration proceedings or detained by ICE to qualify. You also do not need to prove “ineffective assistance of counsel.” Instead, the law focuses on whether a prejudicial error—like not understanding the risks of deportation—undermined your ability to knowingly accept the plea.
What Is Prejudicial Error?
In a Motion to Vacate under Penal Code § 1473.7, prejudicial error means a legal mistake that affected the defendant’s ability to understand, defend against, or knowingly accept the immigration consequences of a conviction. The error must have influenced the decision to plead guilty or no contest—meaning the defendant likely would have chosen a different path if properly informed. Examples of prejudicial error may include:
- Failure to advise the defendant of the immigration consequences of a plea.
- Providing incorrect advice about those consequences.
- The defendant not understanding the impact of the conviction due to language barriers or ineffective translation.
- The court failing to ensure the plea was entered knowingly and intelligently.
In essence, prejudicial error focuses on whether the conviction was entered in a way that violated the defendant’s rights or understanding, particularly regarding immigration consequences, and whether that violation affected the outcome.
Who is Eligible to File?
Under California Penal Code Section 1473.7, individuals who are no longer in criminal custody can file a motion to vacate if their conviction either:
- Adversely affects their immigration status, or
- Was entered due to prejudicial legal mistakes, such as not understanding the consequences (such as deportation) of a plea.
Common Scenarios
- Guilty Plea Without Immigration Advisement (No Interpreter Provided): A non-citizen defendant pleads guilty to a drug offense (e.g., possession for sale under H&S § 11351) during a quick plea deal. The defendant speaks limited English and was not provided a certified interpreter. The defense attorney never explained that the conviction would lead to mandatory deportation and permanent inadmissibility. Years later, the defendant is denied legal status because of the conviction. Motion to Vacate granted — The court found the defendant did not meaningfully understand the immigration consequences at the time of the plea.
- Inaccurate Immigration Advice by The Attorney: A lawful permanent resident is arrested for a domestic violence offense and pleads guilty to Penal Code § 273.5 (corporal injury on a spouse) based on the attorney’s advice that it "won’t affect your green card." The defendant later discovers the plea subjects him to removal and bars naturalization. He files a motion to vacate after being placed in deportation proceedings. Motion to Vacate granted — The court determined that the defendant would have rejected the plea if he had received accurate legal advice.
- No Immigration Warning Given at All: A long-term resident with no prior convictions pleads guilty to a theft offense (e.g., PC § 487(a) – grand theft) to avoid jail time. No one explains that the plea could make him deportable or inadmissible. He later applies for citizenship and is denied due to the conviction. He files a motion under Penal Code § 1473.7, stating that he never would have pled if he’d known the immigration impact. Motion to Vacate granted — The court found the conviction was legally invalid due to the failure to meaningfully understand immigration consequences.
How Does Vacating a Conviction Benefit Immigration Status?
Vacating a conviction eliminates its legal effect, meaning it is no longer considered a valid conviction under the law. For non-citizens, this can be critical—since many immigration consequences, such as deportation, inadmissibility, or denial of naturalization, are triggered by past convictions. A successfully vacated conviction can stop ongoing removal proceedings, reopen pathways to apply for or retain immigration benefits like green cards, visas, or asylum, and significantly strengthen a person’s position in immigration court by removing the legal basis for the government’s case.
What Convictions Are Eligible To Be Vacated ?
Not all convictions are eligible to be vacated. Eligibility primarily depends on the type of offense, how the conviction came about, and whether it resulted in adverse immigration consequences or was entered due to a legal defect. For example, if a conviction was based on a guilty or no contest plea that the defendant did not fully understand—particularly regarding the immigration consequences—it may be grounds for vacatur under California Penal Code Section 1473.7. Similarly, convictions that resulted from ineffective assistance of counsel, misadvice, or a failure to investigate potential defenses may also qualify. The court will look closely at whether the defendant would have acted differently had they been properly informed or advised at the time of the plea. Importantly, the conviction must have played a significant role in triggering or exacerbating immigration problems, such as deportation proceedings, denial of lawful status, or inadmissibility. The process is highly fact-specific and requires a detailed legal and factual showing to succeed.
If the Motion is Not Granted-Is it Appealable?
Yes, a denial of a Motion to Vacate under California Penal Code § 1473.7 is appealable. The defendant may file an appeal with the California Court of Appeal. The notice of appeal must generally be filed within 60 days of the trial court’s denial. The appellate court will review whether the trial court abused its discretion or made a legal error in denying the motion.
How Our Criminal Defense Attorneys Can Help You
Our legal team can help clients with a Motion To Vacate by evaluating whether the conviction was legally flawed or caused immigration consequences. We will gather and present evidence to show that the client did not fully understand the consequences of their plea or was denied effective representation. We also draft the motion, argue the case in court, and work to restore the client’s rights and legal status by seeking to overturn the conviction. With over 50 years of combined experience in criminal law, we have the knowledge and skill to defend your rights. Call us at (213) 481-6811 to schedule your free in-person consultation