Articles Posted in Immigration

People v. Vaca (Cal. Ct. App., Mar. 30, 2023, No. A164953) 2023 WL 2706473, at *1

Summary: Vaca successfully moved under Penal Code section 1473.7 to vacate his conviction and withdraw his no contest plea. He appealed from the trial court’s order denying his motion to dismiss the criminal complaint against him under the same statute. Vaca contends that, after the trial court granted his motion to vacate his conviction under section 1473.7, the statute required dismissal of the underlying criminal complaint filed against him. The Court of Appeal. disagreed and affirmed the court’s order.

Trial court proceedings and motion to vacate the conviction and withdraw the plea under Penal Code Section 1473.7

People v. Villalba (Cal. Ct. App., Mar. 8, 2023, No. B318353) 2023 WL 2595696, at *1

Summary: Villalba appealed the denial of his motion under Penal Code section 1473.7, subdivision (a)1 to withdraw his 2017 no contest plea to a violation of section 273.5 and to vacate his conviction. Villalba asserted that he did not meaningfully understand the actual adverse immigration consequences of the conviction because of misadvice from his lawyer and from the Court. He also maintained that he would not have agreed to the plea if he had understood, and the trial court erred in denying the motion. The Court of Appeal found undisputed evidence demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pled no contest to an offense requiring mandatory deportation. The Court we reversed the order and remanded with directions to the trial court to grant the motion and vacate the conviction pursuant to section 1473.7, subdivision (e).

Plea and conviction

People v. Espinoza (2023) 14 Cal.5th 311 [303 Cal.Rptr.3d 670, 522 P.3d 1074]

Summary: After serving sentence, noncitizen filed statutory motion to vacate conviction pursuant to negotiated no-contest plea, because he had not understood immigration consequences of plea. The Superior Court denied the motion. Noncitizen appealed. The Court of Appeal, 2021 WL 2177264, affirmed. Review was granted by the California Supreme Court.

Holding: The Supreme Court held that noncitizen corroborated his claim that immigration consequences were a paramount concern when he entered negotiated no-contest plea.

Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought  to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was  ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

People v. Millan Rodriguez, 2019 WL 3852665 (Cal.App. 4 Dist.)

Vacating a conviction because of inability to understand immigration consequences (Penal Code Section 1473.7)

On January 1, 2017, Penal Code section 1473.7 went into effect. It allows a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant’s ability to understand the immigration consequences of the plea.

Marinelarena v. Barr, 2019 WL 3227458; (9th Cir. July 18, 2019)

Immigrants with drug convictions are eligible for immigration relief when the record of conviction is vague as to the type of controlled substance.

Conviction for conspiracy to sell and transport a controlled substance

Defendant Sara Arcelia Salcido was in the business of obtaining visas for her clients that would allow them to stay in the United States legally. The Immigration Consultants Act (Bus. & Prof. Code, §§ 22440–22449) (Act) makes it illegal for a person to act as an “immigration consultant” unless they pass a background check and file a bond. Defendant failed to comply with these provisions.

Defendant was convicted on one count of unlawfully engaging in the business of an immigration consultant, a misdemeanor. (Bus. & Prof. Code, §§ 22440, 22441.) The prosecution argued that each time defendant took money from a client in exchange for providing immigration services, she was committing theft by false pretenses, because she was not a legally qualified immigration consultant under state law. The trial court agreed convicting her on six counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of petty theft (Pen. Code, §§ 484, 488. Defendant was placed on probation for five years. On appeal, Salcido argued that Federal Law preempted state regulation.

Preemption Principles.

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