Who Qualifies for a Motion to Vacate

Not every conviction can be vacated — but far more people qualify under Penal Code § 1473.7 than realize it. This page describes the profile of a strong motion, the situations we see most often, and the facts that decide close cases.

The baseline requirements

• A California conviction or sentence. The motion is filed in the superior court of the county where the case happened. (Federal and out-of-state convictions need different remedies.)
• You are no longer in criminal custody for that case — jail, prison, probation, and parole for the challenged conviction have ended.
• A qualifying legal ground: prejudicial error about immigration consequences, newly discovered evidence of innocence, or a violation of the Racial Justice Act.
• Reasonable diligence. For immigration-error motions, you filed with reasonable promptness after the consequences surfaced — a denial, a Notice to Appear, a removal order.

Situations we see every week

“My green card case was denied because of an old conviction”

An adjustment, consular, DACA, U-visa, or naturalization case runs into a decades-old plea. Often the person pled to get out of jail and back to work, with no real explanation of immigration consequences. This is the classic (a)(1) motion — and a denial letter is often the event that starts the diligence clock.

“I got a Notice to Appear” — removal proceedings

When the government’s charge of removability rests on the conviction, vacating it can knock out the case. Coordination matters: continuances, filing sequence, and what the immigration judge is told all have to line up with the criminal-court motion. A firm that practices in both courts can run both tracks at once.

“My husband / mother / son was already deported”

Deportation does not end eligibility. The motion is filed in the California court of conviction; § 1473.7 lets the court excuse personal presence for good cause, so counsel appears while the client participates from abroad. If the conviction is vacated and it was the basis of removal, a motion to reopen the immigration case may follow. Families in Los Angeles frequently start this process for a loved one in Mexico or Central America.

“I’m a citizen now, but the record still hurts me”

Immigration error is only one ground. Newly discovered evidence of innocence — a recantation, new forensic analysis — supports an (a)(2) motion regardless of immigration status. And the Racial Justice Act ground, (a)(3), reaches convictions infected by racial bias or disparity. For purely employment-driven goals, compare the options in other post-conviction relief — sometimes an expungement or 17(b) reduction is the faster fit.

Facts that strengthen an immigration-error motion

• Long residence in the U.S. at the time of the plea, especially since childhood
• U.S.-citizen or LPR spouse, children, or parents; steady work; community ties
• A quick plea — same-day or next-day — with a boilerplate advisement or none at all
• No immigration attorney consulted; defense counsel with no record of immigration analysis
• An alternative plea existed that would have avoided the consequence (an immigration-safe charge, a 364-day sentence, a different statute)
• Evidence you panicked, were pressured, or were told the case “wouldn’t affect immigration”

None of these is required, and no single one is decisive. Under People v. Espinoza, your own credible account, corroborated by the shape of your life, can be enough.

Honest talk about weak motions

We tell people when we believe a motion should not be filed. A thin, boilerplate motion invites a denial that makes everything harder — including the immigration case it was meant to help. Red flags include: the plea transcript shows a genuine, specific immigration advisement you acknowledged understanding; the conviction has no immigration significance; or years passed after a final removal order with no explanation. Sometimes the right move is a different remedy, or building the record first. You deserve that answer up front, and the case review is free.