Justia Immigration Law Opinion Summaries

Articles Posted in California Courts of Appeal

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In 2005, defendant-appellant Jorge Rodriguez pled guilty to unlawful intercourse by a person over 21 under Penal Code1 section 261.5(d). Defendant, as a person over 21, admitted to having sex with a person under the age of 16. The trial court sentenced defendant to formal probation for 36 months. Days later, defendant was taken into custody by the Immigration and Naturalization Service pending resolution by an immigration judge whether defendant would be removed from the United States. That same year, defendant was ordered removed. In 2007, defendant admitted to violating his probation. The trial court added 60 days to defendant’s sentence, to be served on a work release program to commence December 14, 2007, and reinstated defendant’s probation. On September 10, 2008, defendant admitted a violation of a term of his probation requiring defendant to report to probation. The court then reinstated probation. In 2016, filed a petition for dismissal under Penal Code section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under section 17(b). As mitigation, defendant provided in his petition that he married the victim and had two children with her. Moreover, defendant noted that both violations of probation occurred because he was in the custody of Immigration and Customs Enforcement (ICE) and was deported so he was unable to meet his probation officer or check in for his weekend custody obligation. Both motions were denied, and defendant appealed. On January 1, 2017, Penal Code section 1473.7 went into effect. Among other things, section 1473.7 permitted 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. On July 10, 2017, following the filing of the Court of APpeal's opinion in defendant’s first appeal, defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. The trial court denied defendant’s motion without defendant or defense counsel present. The Court of Appeal determined the trial court abused its discretion in denying defendant's section 1473.3 motion and reversed. View "California v. Rodriguez" on Justia Law

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Chen was charged with cultivating marijuana, possession of marijuana for sale, and theft of services. The arraignment form stated, “If you are not a United States citizen, a plea of Guilty or No Contest could result in your deportation, exclusion from admission to this country, or denial of naturalization.” Chen signed the form, attesting she understood it; her court interpreter also signed, certifying it had been translated. Chen pleaded no contest to cultivation of marijuana. On her plea form Chen initialed the statement regarding the immigration consequences. Her interpreter certified it was translated to Chen. At the hearing, through an interpreter, the court asked Chen whether the interpreter read the form, whether Chen understood, and whether she had time to discuss it with her attorney. Chen responded, “Yes.” Years later, Chen moved to vacate her plea and conviction under Penal Code 1473.7 and 1016.5, arguing her attorney failed to properly advise her of the immigration consequences and that she is a Permanent Resident and the primary caretaker for her parents. She asserted that she had no knowledge of her brother's marijuana grow operation but that her attorney told her she would go to jail unless she took a plea bargain. The district attorney cited evidence of Chen’s involvement in the marijuana operation. Chen’s attorney testified that he talked to Chen about her immigration status. The court of appeal affirmed the denial of relief. View "People v. Chen" on Justia Law

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Defendant-appellant and Jordanian citizen Kamal Abdul Fryhaat had been living in the United States for over 30 years. In 2001, he pleaded guilty to various drug-related offenses and admitted to having suffered a prior prison term. In exchange, defendant was released on his own recognizance on various terms and conditions. Defendant subsequently violated his release terms and was sentenced to six years eight months in state prison. Approximately 17 years later, in 2018, as he was facing deportation proceedings, defendant filed a motion to vacate his guilty plea pursuant to Penal Code section 1473.7, arguing his conviction was legally invalid and not knowingly and intelligently made because neither his trial counsel nor the court advised him about the immigration consequences of his guilty plea. The trial court summarily denied defendant’s motion, and defendant appealed. On appeal, he argued the trial court erred in denying his motion to vacate his conviction because the court summarily denied his motion without a hearing, without his presence, and without appointed counsel in violation of section 1473.7. He therefore requested the matter be remanded for a hearing consistent with the provisions of section 1473.7. The State conceded defendant was partially correct, and that the matter must be remanded. Specifically, the State asserted defendant was entitled to a hearing, but as recent amendments to section 1473.7 made clear, defendant did not have a right to appointed counsel and his presence could adequately be protected by use of telephonic or videoconference services. After review, the Court of Appeal reversed the order denying defendant’s motion to vacate his conviction and remanded with instructions to the trial court to conduct a hearing pursuant to section 1473.7, evaluate defendant’s request for appointed counsel, and to consider the motion on its merits. View "California v. Fryhaat" on Justia Law

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Defendant Sara Salcido provided immigration services. Under the Immigration Consultant Act (Act), with certain exceptions, it is illegal for a person to act as an “immigration consultant” (as defined in the Act) unless he or she has complied with a host of consumer protection requirements, such as passing a background check and filing a bond. Defendant failed to comply with these. As a result, defendant was convicted on one count of misdemeanor unlawfully engaging in the business of an immigration consultant. The State argued, however, 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; thus, it also convicted her on six counts of grand theft, and two counts of petty theft. It dismissed two additional counts of grand theft as time-barred. Defendant was placed on probation for five years. Defendant contended the Act was preempted by federal law. She demurred to the complaint on this ground. The Court of Appeal determined federal law did not preempt the application of the Act to defendant. View "California v. Salcido" on Justia Law

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In March 2003, Raul Novoa pled guilty to possession of methamphetamine for sale. The trial court sentenced him to 180 days in county jail and three years' probation. In 2012, the United States began deportation proceedings against Novoa, which were ongoing at the time of this opinion. In May 2017, Novoa successfully moved to vacate his 2003 conviction per Penal Code section 1473.7. The State appealed, arguing the trial court erred by: (1) holding Novoa's trial counsel to a duty the law did not require; and (2) finding Novoa suffered prejudice. In support of its position, the State contended the superior court's factual findings were not supported by substantial evidence. Moreover, the State argued laches prohibited Novoa's motion. The Court of Appeal found the State’s arguments were without merit and thus affirmed the superior court. View "California v. Novoa" on Justia Law

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The Court of Appeal granted Reyna Hernandez’s petition for writ of habeas corpus seeking to have her conviction for possession of methamphetamine for the purpose of sale vacated and the opportunity to withdraw her guilty plea. The record both showed her appointed trial counsel failed to advise her before she entered her guilty plea that her plea would subject her to mandatory deportation, and contained evidence, including contemporaneous objective evidence, she would not have entered her guilty plea had she been so advised. The Court of Appeal published this opinion because it discussed evidence establishing ineffective assistance of counsel, including prejudice, for failure to advise of mandatory deportation consequences attached to a guilty plea. View "In re Hernandez" on Justia Law

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In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana. The trial court sentenced Gonzalez to 74 days in custody After serving his 74 days in custody, Gonzalez was deported in October 2000. Gonzalez reentered the United States about a year later. He subsequently was convicted of possession of a controlled substance for sale, making criminal threats, and domestic battery. In June 2002, Gonzalez was deported again. He reentered the United States, but was deported yet again in April 2017. On January 1, 2017, Penal Code section 1473.7 became effective, allowing a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." In August 2017, Gonzalez moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing, the superior court denied Gonzalez's motion. Gonzalez appealed, contending the court erred in denying his motion under section 1473.7. Specifically, he claimed he established prejudicial error based on his counsel's failure to adequately advise him of the immigration consequences of his plea and failure to seek an immigration safe alternative disposition. The Court of Appeal concluded Gonzalez's arguments lacked merit, and as such, affirmed. View "California v. Gonzalez" on Justia Law

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In 2014, Appellant pled guilty to felony aggravated assault with a deadly weapon, possession of a controlled substance, and possession of a billy club. He also admitted the allegations in the motion to revoke probation in an earlier case. Appellant was sentenced to three years’ probation and a 180-day county jail term. When he entered his pleas the court explained, and Appellant acknowledged, the possible immigration consequences of his convictions. Counsel stated he had advised Appellant accordingly. Appellant was placed in removal proceedings but was granted cancellation of the removal. In 2015, Appellant was found in possession of methamphetamine for sale, resisted arrest, and attempted to destroy evidence; he was placed on probation for five years. In the new criminal case, Appellant pleaded guilty to resisting arrest and was sentenced to 360 days in the county jail. In 2017, Appellant moved to vacate revocation of probation under Penal Code 1473.7(a)(1), alleging ineffective assistance of counsel regarding the immigration consequences of his admission and sentence. The court of appeal affirmed denial of the motion. Appellant, a convicted felon currently on formal probation, is not entitled to the relief under section 1473.7. He did not establish ineffective assistance; the trial court would not have tolerated any lesser sentence and it is unlikely Appellant would have gone to trial under the circumstances. View "People v. Cruz-Lopez" on Justia Law

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In 2002, Morales pleaded no contest to a drug offense. He served his sentence, voluntarily departed the U.S., and reentered the country. In 2017, while residing in the U.S., he moved to vacate this conviction under the newly enacted Penal Code section 1473.71, hoping to obtain legal status via a “U visa.” Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for that visa, and that he pleaded no contest only because of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the U.S.. The superior court denied his motion without prejudice based on its interpretation of section 1437(b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. The court of appeal reversed. The lower court ignored the plain terms of section 1473.7(a)(1); interpreting subdivision (b) to prevent noncitizens from seeking relief until and unless they are subject to removal proceedings would turn a provision about timeliness and due diligence into one that guarantees delay and renders section 1473.7 ineffectual in many cases. View "People v. Morales" on Justia Law

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In 2012, Vikash, a U.S. citizen born in Fiji, married Ashlyne, a citizen of Fiji, in Fiji in an arranged marriage. Vikash filed an immigration visa petition on Ashlyne's behalf, which was approved, and submitted an I–864 affidavit of support, under which the sponsor agrees to “[p]rovide the intending immigrant any support necessary to maintain ... an income that is at least 125 percent of the Federal Poverty Guidelines ... that person may sue you for this support.” According to Ashlyne, Vikash abused her and “tricked” Ashlyne into going to Fiji in 2013, where he abandoned her. Her legal permanent resident stamp was torn out of her passport. Ashlyn obtained temporary documents from the U.S. Embassy and returned to the U.S. Vikash sought an annulment. Ashlyne indicated she had applied for government assistance and argued that by signing the I–864 affidavit, Vikash agreed to support her for 10 years. The court awarded temporary support and ordered Ashlyne to make efforts to get the necessary paperwork "to work in this country if she is intending on remaining.” The court later terminated support and denied Ashlyne’s request to enforce the I–864 because Ashlyne was “not using best efforts to find work.” The court of appeal reversed. An immigrant spouse has standing to enforce the I-864 support obligation in state court and has no duty to mitigate damages. View "In re: Marriage of Kumar" on Justia Law