BIA Unsuccessful in Discounting 1473.7(a)(1) Relief

For years, immigration attorneys have cautioned that (federal) immigration judges seem eager to disregard a (state court) order to vacate under Penal Code § 1473.7(a)(1) because the immigration judges regard such motions as being granted too often, constituting a legal loophole and embodying gamesmanship.  

The immigration judges are skeptical of someone who takes advantage of, for example, a probationary offer to a crime having adverse immigration consequences rather than serve time on another charge that has no adverse immigration consequences.  The person then stays out of custody and remains in the local community until ICE identifies and arrests them and the person finds themselves in the Adelanto Deportation Processing Center, for example.  The person then files a motion to vacate, conveniently claiming in a self-serving way, “I never knew there were adverse immigration consequences . . .” and the state court judge grants the motion.

We understand this skepticism as we have had dozens of clients tell us, “I never knew there were adverse immigration consequences” and we later get the transcript of the plea where the client testified in court that he understood there were adverse immigration consequences to the plea, his attorney at the time had worked to find an immigration-neutral alternative (to no avail), but the client still takes the plea bargain that had deportation / removal consequences.  We have been lied to like the immigration judges suspect.

Nonetheless, there are dozens of clients who we believe never knew about the adverse immigration consequences and their other conduct and descriptions of their lives seems to confirm this.

So, just as it is better to set ten guilty men free than imprison one innocent man, our state court judges must rule with deference to the often dubious claims of non-citizens facing deportation that they “never knew . . .”

This was recently affirmed in the U.S. Ninth Circuit Court of Appeals case of Claude Stephen Bent v. Merrick B Garland, a decision reached on August 15, 2024.  This is the first ruling that articulates and rejects the rising immigration judge sentiment that 1473.7(a)(1) motions to vacate should be disregarded.  We like this ruling.

Mr. Bent had been a lawful permanent resident since 1980.  In 2006, he pled no contest to two felony charges and when he did so, he was not made aware that the plea would have adverse immigration consequences.  

After Mr. Bent then served 13 years in state prison, the Department of Homeland Security detained him.

Mr. Bent then applied for asylum and moved to vacate his plea under Penal Code § 1473.7(a)(1), but while his motion to vacate was pending, the immigration judge on his case ordered him removed.  

The state court granted the motion to vacate and Mr. Bent moved to reopen his removal proceedings before the Board of Immigration Appeals (BIA), contending that the sole basis for his removal had been vacated and therefore he was no longer removable. 

 

The BIA denied the motion, noting that rehabilitative vacaturs do not affect a conviction’s validity for immigration purposes.

Mr. Bent then appealed to the United States Court of Appeals for the Ninth Circuit in San Francisco.

The Ninth Circuit granted the petition in part.  It ruled that, indeed, if a state court vacates a conviction solely for rehabilitative purposes or reasons to changs a person’s immigration status, the conviction remains valid for deportation purposes. 

 

However, the Ninth Circuit held, if a state court judge grants a motion under Penal Code § 1473.7(a)(1), that is different because such an order to vacate is based on a finding that the plea or conviction is legally invalid due to a prejudicial error damaging the defendant’s ability to meaningfully defend against or knowingly accept the adverse immigration consequences.  In other words, the plea or conviction was constitutionally deficient.  

Therefore, the Ninth Circuit held that the BIA had plainly misunderstood the nature of a motion to vacate under Penal Code § 1473.7(a)(1) and remanded the case to the BIA to reassess whether the government had met its burden of establishing Mr. Bent’s conviction remained valid for immigration purposes.