Successfully Obtained Post Conviction Relief Pursuant To CA Penal Code 1473.7 and Terminated Removal Order in Immigration Court For Client With Multiple Convictions (February 2024)

In a September 2022 decision, San Francisco Immigration Court granted our client’s Motion to Reopen and Terminate Removal Proceeding because our client is no longer removable due to the vacate and reduction of our client's criminal convictions. Department of Homeland Security filed a lengthy  20 pages opposition to our motion. However, the immigration judge ruled on our favor.

Our client is a permanent resident. Unfortunately, he had a difficult youth. As a young adult, he made a series of mistakes that led to two criminal convictions. The first was a burglary conviction when he was 18 (Cal. Pen. Code § 460).  This led to a deportation order against him in immigration court.

In 2006, when he was involved in a tragedy. He was unfortunately at the scene when an acquaintance of his hurt someone, resulting in that person losing his life. Our client did not participate in this act of violence or even in the planning of it, he just happened to be in the same car.  On the advice of his public defender at the time, he accepted a plea deal and pled no contest to conspiracy and accessory after the fact along with sentence enhancements (Cal. Pen. Code §§ 32, 182(a)(1), 667(b)-(i)/1170.12). At the time, no one advised our client of the immigration consequences of pleading no contest to those charges. Had he known that the plea could endanger his immigration status and potentially bar him from becoming a U.S. citizen, he never would have entered the plea.

Attorney Nguyen D. Luu took on representation and determined that the best approach to regain our client's permanent residency and perhaps naturalization is by Post Conviction Relief under California state law. Our office approached the Santa Clara District Attorney Office and filed a motion in the criminal court pursuant to Pen. Code, §§ 1473.7 to vacate the client’s convictions due to substantial and procedural defect of client’s criminal proceedings.

Fortunately, we were able to come to an agreement with the District Attorney office and entered into a Stipulation and Order where the Santa Clara County Superior Court issued an order,  legally invalidated our client's conspiracy conviction and the enhancements, because the failure to warn our client of the immigration consequences of his criminal plea is procedural defect in the criminal proceeding, violated his constitutional right, and prejudiced his ability to “meaningfully understand, defend against, or knowingly accept the . . . adverse immigration consequences” of the conviction. Cal. Pen. Code § 1473.7. Thus, his  conspiracy and enhancement convictions were vacated, and he pled guilty instead to a second count of accessory after the fact (Cal. Pen. Code § 32). Following the court’s order, his 2006 conviction was converted to two counts of misdemeanor accessory after the fact (Cal. Pen. Code § 32) with a combined total sentence of 364 days. The Santa Clara Superior Court also found that our client had successfully completed his probation and paid all fines and fees; accordingly, the sentence was deemed served and his probation was terminated.

Following the Santa Clara Superior Court’s order, our office successfully moved the Immigration Court to terminate removal proceedings against him despite the government's fierce objection. His successful motion to reopen and terminate removal proceedings was based on two grounds:

(1) legal changes rendered his 2003 burglary conviction a non-deportable offense; and

(2) following the Santa Clara Superior Court’s orders, the 2006 convictions are not deportable

offenses either. Under these circumstances, “material change[s]” in the law or fact underlying the

removability grounds warranted termination of the removal proceedings. 8 C.F.R. § 1003.23(b)(4)(v).

Because our client's remaining conviction are neither inadmissible or deportable,  in terminating removal, the Immigration Court removed the final barrier to our client's naturalization. The firm is extremely please of the result we were able to achieve for our client. Our client's naturalization application is now pending.