Post Conviction relief in criminal court can enable non-citizen immigrant defendants to continue their lives in the United States. Penal Code Section 1016.5 is a powerful law that enables an immigrant defendant to set aside an adverse conviction to prevent adverse immigration consequences if he or she can prove they were not properly advised of immigration consequences. Penal Code Section 1016.5 was enacted by the California Legislature to protect immigrant defendants who may suffer from adverse immigration consequences as a result of entering a plea to a crime in California Superior Court. This law has enacted this law in 1977 to protect a special class of defendants, namely defendants facing immigration consequences in immigration court.
Under section 1016.5, subdivision (a), defendants must be advised that conviction of the offense for which they have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” The California Supreme Court in the decision of People v. Patterson (2017) has held, however, that the words “may have” in a section 1016.5 immigration advisement are not adequate immigration advisement for defendants charged with serious controlled substance offenses. It was reasoned that defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. The Court in the Patterson decision said, “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specifically charged offense will render the defendant subject to mandatory removal.” Therefore being advised “may” with some serious charges can be found to be inadequate given the nature of the offense. For some offenses, a non-citizen defendant must be advised that immigration consequences are mandatory.