Monday, January 31, 2022

AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal

On January 1, 2022, AB 1259 became effective in California. This new law amends California Penal Code § 1473.7 to allow noncitizens to seek post-conviction relief on certain trial convictions. Previously, in 2016, the California legislature passed 1473.7 which created a post-conviction relief mechanism to vacate certain prior convictions. The law allowed noncitizens to vacate convictions when there was a “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences." Whereas before the law only applied to guilty pleas, after the recent amendment, it now applies to cases that went to trial.

This and other California laws have sought to implement the 2010 landmark U.S. Supreme Court decision in Padilla v. Kentucky which found that the Sixth Amendment demands accurate advice from defense counsel on the immigration consequences that flow from a criminal conviction.


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