Worried About Deportation After a Conviction? Here’s How a Motion to Vacate Can Help

If you’re not a US citizen and you’ve pled guilty to a criminal charge in the past, you might now be facing serious immigration issues. Maybe you’re at risk of deportation, being denied reentry into the US, or having your citizenship application rejected. What you might not know is that there’s a legal tool that could help: a motion to vacate.

A motion to vacate is a powerful form of post-conviction relief specifically designed to address situations where a past criminal plea is causing immigration problems. This legal motion asks the court to withdraw or “vacate” your previous guilty or no contest plea, potentially removing the immigration consequences that are threatening your future in the United States.

How a Motion to Vacate Works for Immigration Cases

When you file a motion to vacate, you’re essentially telling the court: “My previous plea wasn’t valid because I didn’t fully understand the immigration consequences when I agreed to it.”

This isn’t about claiming innocence. Instead, it focuses on whether you truly understood what would happen to your immigration status when you accepted the plea deal. If you can show the court that you weren’t properly advised about these consequences, you may be able to withdraw your plea.

In California, there are two primary legal pathways for this relief:

Penal Code 1016.5: When Courts Fail to Warn About Immigration Consequences

California Penal Code Section 1016.5 requires courts to give a specific warning to non-citizens before accepting a guilty or no contest plea. The court must tell you on the record that if you’re not a US citizen, your plea could result in:

• Deportation from the United States
• Denial of naturalization (becoming a citizen)
• Being denied reentry into the country

If the judge failed to give you this warning, or if it wasn’t properly documented in your court records, you may have grounds to vacate your conviction under PC 1016.5.

To win this motion, you’ll need to prove:

• You weren’t properly warned about immigration consequences
• You’re now facing actual immigration consequences because of the conviction
• If you had known about these consequences, you probably wouldn’t have entered the plea

Penal Code 1473.7: When Your Attorney Failed to Advise You Properly

The second pathway, California Penal Code Section 1473.7, is broader and often more helpful. This law allows you to file a motion to vacate if your conviction is “legally invalid due to prejudicial error.”

The most common “prejudicial error” in immigration cases is when your defense attorney didn’t properly explain the immigration consequences of your plea. Under this law, your attorney had a duty to:

• Investigate the potential immigration consequences of your case
• Accurately advise you about those consequences
• Try to negotiate a plea deal that would avoid or minimize immigration problems

If your attorney failed in these duties, and that failure prevented you from making an informed decision about your plea, you may have grounds for relief under PC 1473.7.

Why Timing Matters for Your Motion to Vacate

While these motions can be filed years after your conviction, timing is still crucial:

• File before immigration proceedings start, if possible
• Don’t wait until you’re already in removal proceedings
• The sooner you file, the stronger your case appears to the court
• Evidence and witnesses become harder to locate as time passes

There’s no strict deadline for filing these motions, but courts will consider whether you acted with “reasonable diligence” once you discovered the immigration consequences.

The Process of Filing a Motion to Vacate

Filing a motion to vacate is a complex legal process that typically involves:

1. Gathering evidence: Court transcripts, plea agreements, immigration documents, and other records
2. Developing legal arguments: Identifying exactly how your rights were violated
3. Securing supporting declarations: Statements from you, your former attorney, and others
4. Filing the motion: Submitting formal paperwork with the court where you were convicted
5. Court hearing: Presenting your case before a judge

This is not something you should attempt without experienced legal representation. A successful motion requires deep knowledge of both criminal and immigration law.

What Happens After a Successful Motion to Vacate?

If your motion to vacate is granted, your previous plea is withdrawn. This doesn’t mean your case disappears – instead, it returns to the pre-plea stage. The prosecutor can choose to:

• Dismiss the case entirely
• Offer a new plea deal with less severe immigration consequences
• Proceed to trial on the original charges

Your attorney should negotiate with the prosecutor for a resolution that protects your immigration status while resolving the criminal case.

Common Questions About Motions to Vacate

Can anyone file a motion to vacate? 

No. These motions are specifically for non-citizens facing immigration consequences from criminal convictions. If you’re a US citizen, different post-conviction relief options would apply.

Will a motion to vacate guarantee I won’t be deported? 

No. A successful motion doesn’t guarantee protection from deportation, but it removes one significant obstacle by eliminating the conviction that’s causing immigration problems.

Can I file a motion to vacate for any type of conviction? 

Yes, but certain convictions (especially those considered “aggravated felonies” or “crimes involving moral turpitude” under immigration law) create more urgent situations.

What if my conviction was from another state? 

You’ll need to file your motion in the state where you were convicted, following that state’s laws. Many states have laws similar to California’s PC 1016.5 and PC 1473.7.

How The Nieves Law Firm Can Help With Your Motion to Vacate

If you’ve entered a plea in the past and are now facing immigration consequences, The Nieves Law Firm can help determine if a motion to vacate is right for your situation. Our approach includes:

• Thorough review of your criminal and immigration records
• Assessment of eligibility under PC 1016.5 or PC 1473.7
• Development of compelling legal arguments
• Gathering of supporting evidence and declarations
• Strategic negotiation with prosecutors
• Forceful presentation of your case in court

A criminal conviction doesn’t have to destroy your immigration status. Contact us to discuss whether a motion to vacate could help protect your future in the United States.