What happens when a defendant says he didn’t understand that his guilty plea would lead to his deportation? Is it possible to withdraw the guilty plea when the defendant is no longer in custody on the basis that he didn’t understand the consequences of the guilty plea on his immigration status?
Penal Code section 1473.7 provides that a person who isn’t in custody can make a motion to vacate his plea of guilty based on a claim that he failed to understand that his plea could lead to deportation. Penal Code section 1473.7 became the law in California on January 1, 2017. It provided that a person can look back at old convictions and make this motion even though the conviction occurred before the law took effect.
The problem for most people in California is that almost every guilty plea requires a form be filled out and signed by the Defendant at the time of the plea where the Defendant acknowledges that his guilty plea can lead to deportation, exclusion from the United States and denial of naturalization. In the recent case of People v Perez decided January 23, 2018 the Defendant claimed that he didn’t understand that his guilty plea would lead to deportation. Unfortunately for Mr. Perez, there was a plea form that told him that his guilty plea would lead to deportation just like almost all the guilty plea forms used in California. Mr. Perez was provided an interpreter at the time of the plea who was required to accurately interpret the form for Mr. Perez at the time of his plea. Therefore the Perez court held that his motion to vacate his guilty plea should be denied because the interpreter explained everything to him and he said he understood at the time he pled guilty.
It can be worth making a 1473.7 claim, but clearly the record for the proceedings at the time of the plea will be at least as important as whatever the defendant claims he did or didn’t know or understand. Your attorney will need to get all the court records to adequately advise you of your chances of success in withdrawing your plea if it is causing you immigration problems.