Sex Offender Denied 1473.7 Motion to Vacate Affirmed

With every new statute, cases arise that stretch and test the new law in ways the Legislature or the voters never anticipated.  The following summary exemplifies this type of case.

In April 2011, in Shasta County, California, Andrew Lawrence Gregor pleaded guilty to a felony violation of Penal Code § 288.4(b) (contacting a minor with the intent to commit a sexual offense) and a misdemeanor violation of Penal Code § 288.4(a)(1) (contact with a minor with intent to commit a sex offense).

Pursuant to the negotiated terms of the plea bargain, sentencing was delayed for one year to permit Mr. Gregor to attend a sexual integrity program.  If Mr. Gregor successfully completed the program, the felony 288.4(b) charge would be dismissed.

Mr. Gregor was a naturalized citizen from Australia.  On the plea form, Mr. Gregor initialed a box stating, “If I am not a citizen of the United States, my plea could result in my being deported from or excluded from admission to the United States, or denied citizenship.”  When he entered his plea, Mr. Gregor also acknowledged reading, understanding, and giving up each right listed on the form.

On September 27, 2012, the trial court dismissed the felony count and placed Mr. Gregor on informal probation on the misdemeanor count. 

In August 2016, United States Citizenship and Immigration Services (USCIS) sent Mr. Gregor a letter advising him that it intended to deny his petition for a family-based visa for his wife.  The USCIS identified a federal law prohibiting United States citizens and lawful permanent residents who have been convicted of specified offenses against a minor from filing a family-based visa petition.

On March 15, 2018, Mr. Gregor filed a motion to vacate his conviction under Penal Code § 1473.7, alleging his conviction was legally invalid due to a prejudicial error damaging his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his conviction.  The motion also alleged that he was unable to sponsor his father for citizenship.

The trial court judge in Shasta County, Daniel E. Flynn, denied Mr. Gregor’s motion without prejudice.

Mr. Gregor then refiled his motion, amending it to allege that when he entered his plea in the case, he was unable to meaningfully and knowingly accept the adverse immigration consequences of his plea because he was not informed that he would be unable to petition for a family-based visa to sponsor his wife or his father. 

Judge Flynn again denied the motion, explaining that Mr. Gregor stood in no worse position in terms of immigration consequences at the time of the motion than he did before he pled guilty.  Furthermore, the judge found that the right to sponsor a person to become a citizen was not an “application for an immigration benefit” as set forth in the statute and his inability to sponsor his father or wife was a collateral consequence of Mr. Gregor’s conviction, and, at best, a minor one, because the father could seek another sponsor.

Mr. Gregor then appealed the court’s ruling to the Third Appellate District in Sacramento. 

The Third Appellate District court distilled down the appeal to the question of an ability to sponsor one’s father for a family-based visa is an immigration benefit under federal law and if so, whether Mr. Gregor’s plea of guilty means there was a prejudicial error in the conviction such that Penal Code § 1473.7(a)(1) requires that the conviction be vacated. 

 

The appellate court noted from the outset that the issue posed by Mr. Gregor was a question of statutory interpretation, so the appellate court would adopt a de novo review approach. 

The appellate court then examined the context of Penal Code § 1473.7(a)(1) and commented that the Legislature required the motion to be brought within reasonable diligence after the later of (1) “[t]he date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal;” and (2) “[t]he date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.”  Penal Code § 1473(b)(1) – (2); see also People v. Perez (2021) 67 Cal. App. 5th 1008.

In other words, the statutory or legislative intent in protecting a defendant from adverse immigration consequences referred to removal, exclusion, denial of naturalization and damage to one’s lawful immigration status, not denial of a family visa.

Accordingly, the Third Appellate District affirmed the trial court because the denial of a family visa was not considered an adverse immigration consequence under Penal Code § 1473.7(a)(1).

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