Post-Conviction Relief for Immigrants

Typically, a motion to withdraw a guilty plea may be made in the trial court before judgment or within a certain period of time after judgment has been imposed.[205]  The grounds are sometimes discretionary, as when the plea results from mistake, inadvertence, or excusable neglect.  Other grounds require the court to vacate the conviction, as when the plea is not voluntary in the constitutional sense, when the plea results from ineffective assistance of counsel, or when other jurisdictional or constitutional defects are present.  See Chapter 6, infra.

            Since courts are highly reluctant to disturb guilty pleas, this avenue can sometimes best be approached as one giving the prosecution and the court the opportunity to respond to the equities of the situation and grant compassionate relief.  It always helps, of course, to have a “mandatory” or constitutional argument to give the prosecutor or court a reason to do the right thing when persuaded that justice will be thereby served.

            A withdrawal of a guilty plea will serve to eliminate any conviction generally, and as a ground of deportation, exclusion, or ineligibility to show good moral character.[206]

            The motion to withdraw a plea must generally be heard and decided by the court before which the plea was entered.[207]

[205] For example, under California Penal Code § 1018, a court may allow a defendant to withdraw his or her guilty plea “for good cause shown” before judgment is entered or within six months  after the defendant is placed on probation. 

[206] This is true assuming the trial court had jurisdiction under state law to vacate the conviction.  See, e.g., discussions in Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[207] E.g., California Penal Code § 859a.