Our office has brought over forty motions to vacate under Penal Code § 1473.7(a)(1) in the last two years. In our experience, judges are adverse and skeptical of such motions, regarding them as often lacking credibility and seeking a windfall by saving someone from impending deportation to agree to exactly such consequences earlier to avoid a lengthy prison term . Some judges can be aggressively hostile toward such motions because the law, quite frankly, relies upon a subjective standard, not an objective standard, so judges become frustrated.
Judges, however, should focus their angst on legislators, not litigants, for what they believe are needed changes in the law. Otherwise, they need to apply the law even if they do not agree with it, just as they instruct jurors to follow the law even if they do not agree with its terms.
Sometimes, however, judges find an opening and pounce on a defendant bringing such a motion, denying the motion.
The Gist of this Article: Terrible facts of this case exemplify when a Penal Code § 1473.7(a)(1) motion being denied is proper. In this case, during the plea, the court dwelled on the immigration admonishment and asked defendant if he knew he would be deported and he acknowledged this, saying, “Yes, I understand. But I’m just going to wait for immigration” (ICE) to pick him up.
The following summary is one such example and really is a cautionary tale. The reader can be the judge of whether the denied motion was correctly denied.
Mohammed Abdelsalam, a native of Egypt, pleaded guilty in Pomona Superior Court to making criminal threats and entered into a plea bargain to serve 364 days in the Los Angeles County jail, not state prison. If he had been convicted on all charges he faced, he could have been sentenced to up to ten years in state prison.
The underlying case arose from Abdelsalam coming from Egypt to the United States in 2017 on a fiancé visa. His fiancé did not know that he planned to divorce her once he gained citizenship through the marriage. She discovered this plan through a search of his cell phone. He said to someone else through text message, “Let me just get ahold of the marriage certificate, as soon as I become legal, I can divorce her and she can go F herself.”
The fiancé broke off the relationship and reported the immigration fraud committed by Abdelsalam to the Immigration and Customs Enforcement (ICE) fraud tip line, and notified the police. She also got a restraining order against him.
In response, Abdelsalam violated the restraining order by burglarizing his now-former fiancé’s home, injuring her and making criminal threats against her.
He then had a preliminary hearing in the criminal case and ICE agents came to the hearing.
He later entered into a plea bargain to just criminal threats. The judge told Abdelsalam that as a result of the conviction, he would be deported. He was also advised in writing that he would be deported. His attorney reviewed the immigration admonition with him. When told by the judge that he would be deported due to the conviction, he commented that “Yes, I understand. But I’m just going to wait for immigration.” The trial court asked the attorney, “do you believe your client understands the immigration consequences?” Trial counsel responded, “I explained them to him.”
In other words, the judge, the defendant and defendant’s attorney dwelled on the issue of the immigration consequences of the plea. It was not just a script the judge read like he or she does with each and every person who enters into a plea bargain.
After entering into his plea bargain, he was detained by ICE, which initiated deportation proceedings.
Abdelsalam then filed a motion to vacate his conviction under Penal Code § 1473.7(a)(1), in which he claimed he never understood that he would be deported and should therefore be allowed to vacate his conviction.
The judge in Pomona, Rogelio G. Delgado, denied the motion and Abdelsalam appealed this ruling to the Second Appellate District court in downtown Los Angeles, which affirmed the trial court judge.
The appellate court vented its frustration over Abdelsalam’s claims, stating “Appellant is not entitled to simply ignore the admonition he was given about the consequences of the plea and argue that he unilaterally assumed he would be treated in direct contravention of what he was advised orally and in writing.”
Moreover, the appellate court noted that Abdelsalam’s comment “Yes, I understand. I’m just going to wait for immigration” during the plea colloquy about the immigration consequences made perfect sense. He was sentenced to 364 days in custody with credit for 220 days. He would need to finish serving the balance of his custody while waiting for “immigration” (ICE) to pick him up from the jail to be deported. He definitely understood that his plea would result in his deportation, so his motion was properly denied.
We present this summary because it epitomizes bad facts. Abdelsalam engaged in immigration fraud in coming to the U.S. He had not stayed in the United States for 40 years prior to entering into the plea, like in People v. Vivar (2021) 11 Cal. 5th 510, 523. He had no ties to the United States that he would endanger, showing if he knew the immigration consequences, he would not have entered into such a plea. He even admitted that he knew there were consequences, telling the judge, in effect, that he’d just go to jail and see whether immigration came for him.
The citation for the Second Appellate District Court ruling discussed above is People v. Mohammed Abdelsalam (2nd App. Dist., 2022) 73 Cal. App. 5th 654, 288 Cal. Rptr. 3d 658.
For more information about 1473.7(a)(1) issues, please click on the following articles: