In People v. Suon,[361] the court affirmed the trial court’s denial of Suon’s motion to withdraw his guilty plea on grounds he had not been advised, at the time he pleaded guilty, of the potential immigration consequences as required by Penal Code § 1016.5.  The court held that Suon had failed to prove by clear and convincing evidence that he is not a United States citizen.  Penal Code § 1016.5(b) requires the defendant to show that the conviction may result in immigration consequences in order to set aside the plea.

 

            The defendant submitted a declaration stating that until speaking with his attorney on a certain date, “I believed and understood that I was a naturalized citizen of the United States.”  His attorney declared that Suon “is a Cambodian national.”  “However, both of these declarations lack foundation for the conclusions asserted.  Moreover, defendant has failed to produce any documentary evidence, such as a birth certificate or passport, to support his claim that he is a Cambodian national, or at least not a United States citizen.  Thus, defendant has failed to meet his burden of producing clear and convincing evidence that his guilty plea subjects him to adverse immigration consequences.”

 

Therefore, to be safe, the defendant should submit documentary evidence of noncitizenship in support of a motion to vacate under Penal Code § 1016.5.

 

            PRACTICE TIP:  If the client is concerned to keep confidential the fact of the client's immigration status, counsel may consider making the motion in camera and requesting the sealing of the moving papers and transcript.[362]

[361] People v. Suon (1999) 76 Cal.App.4th 1.

[362] People v. Aguilera, supra.  The statute itself provides that the court may not ask what the defendant's immigration status is.  (Penal Code § 1016.5(d)(last sentence)[“It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.”].)

POST CON RELIEF " GROUNDS " VIENNA CONVENTION ON CONSULAR RELATIONS
Garcia v. Texas, 131 S.Ct. 2866 (Jul. 7, 2011) (denying application for a stay of an execution on the grounds that conviction was obtained in violation of the Vienna Convention on Consular Relations; neither the Avena decision nor the executive memorandum purporting to implement that decision constituted directly enforceable federal law where the Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment).