Can you undo an old California conviction that now causes immigration problems? Penal Code 1473.7

Sometimes, yes. A person who is no longer in criminal custody can ask the California court to vacate a conviction or sentence under Penal Code § 1473.7, including when a prejudicial error damaged their ability to understand, defend against or knowingly accept its immigration consequences. If the person proves a ground by a preponderance of the evidence, the court must grant the motion and, for a guilty or no contest plea, allow the plea to be withdrawn.

Some people learn what an old plea means only years later: at a green card renewal, a naturalization interview, a return flight, or when a notice arrives from immigration authorities. Section 1473.7 is one California remedy for that moment. It is a motion filed in the criminal court, not an immigration application, and it is decided under California law. This page explains who can file, on what grounds, when, and what happens at the hearing. It is one of the criminal topics listed under the firm's practice areas.

This office handles the California criminal court side of a § 1473.7 motion. It does not give immigration advice. Whether a conviction causes or could cause an immigration problem, and what vacating it would change, are questions for an immigration attorney, and a motion like this should be prepared together with one. For the rules that apply while a case is still open, read the page on how a California criminal case can affect a green card or visa.

How a Penal Code 1473.7 motion works, step by step

1. Check who may file. The motion is for a person who is no longer in criminal custody (§ 1473.7(a)). The section's text does not define the term on its face, so a person still on probation, parole or supervision should raise that question with an attorney before filing.
2. Choose the ground. There are three: (1) the conviction or sentence is legally invalid due to prejudicial error damaging the person's ability to meaningfully understand, defend against or knowingly accept the actual or potential adverse immigration consequences; (2) newly discovered evidence of actual innocence; (3) the conviction or sentence was sought, obtained or imposed on the basis of race, ethnicity or national origin in violation of § 745(a) (§ 1473.7(a)(1) to (3)). A finding of legal invalidity under the first ground may, but need not, include a finding of ineffective assistance of counsel (§ 1473.7(a)(1)).
3. Gather the record and the evidence. The court file, including the plea form and minutes; the prior defense attorney's file and notes, if they still exist; and evidence of the person's situation at the time of the plea. The California Supreme Court has said a person must corroborate factual assertions with objective evidence, which includes declarations, contemporaneous documentation of immigration concerns or contact with counsel, and evidence of the charges faced (People v. Espinoza (2023), S269647).
4. Prepare and file the motion. The Judicial Council's optional form CR-187, Motion to Vacate Conviction or Sentence (revised July 1, 2026), covers both § 1016.5 and § 1473.7 motions. Its instructions say to file it in the superior court in the county where the conviction or sentence was imposed, to file a separate motion for each case number, and to serve it on the prosecuting agency.
5. The hearing. Every motion is entitled to a hearing. On request, the court may hold it without the person present if it finds good cause why they cannot attend, and if the prosecution does not object, the court may grant the motion without a hearing (§ 1473.7(d)).
6. The ruling. The court must grant the motion if the person proves any ground by a preponderance of the evidence. For the immigration ground, the person must also show that the conviction or sentence is currently causing, or has the potential to cause, removal or the denial of an application for an immigration benefit, lawful status or naturalization (§ 1473.7(f)(1)). If the motion is granted on a plea, the court must allow the person to withdraw the plea (§ 1473.7(f)(3)).
7. Appeal. An order granting or denying the motion is appealable as an order after judgment affecting the substantial rights of a party (§ 1473.7(g)).

What the court looks for on the immigration ground

In People v. Vivar (2021), case S260270, the California Supreme Court explained that showing prejudicial error means demonstrating a reasonable probability that the person would have rejected the plea if they had correctly understood its actual or potential immigration consequences. Courts look at the totality of the circumstances. The factors the Court named as particularly relevant are the person's ties to the United States, the importance they placed on avoiding deportation, their priorities in seeking a plea bargain, and whether they had reason to believe an immigration-neutral negotiated disposition was possible. The Court also held that an appellate court reviews these rulings independently.

Two years later, in People v. Espinoza (2023), case S269647, the Court said that ties to the United States are an important factor because they shed light on a person's immigration priorities, and that community ties may be shown by length of residence, immigration status, lack of connection to the country of origin, connections to family, friends or the community, work history or financial ties. It added that the factors are not exhaustive, no single type of evidence is required, and a person's own declaration is one form of objective evidence.

The statute itself narrows what the court must decide: on the immigration ground, the only finding required is whether the conviction is legally invalid due to the prejudicial error described in the statute (§ 1473.7(f)(4)). A court may make a specific finding that a former attorney was ineffective only if that attorney received timely advance notice of the hearing (§ 1473.7(h)).

What changes the answer?

• Custody status. The motion is for a person no longer in criminal custody (§ 1473.7(a)). Someone still in custody needs a different route.
• When immigration notices arrived. An immigration-ground motion may be found untimely if it was not filed with reasonable diligence after the later of a notice to appear or other notice asserting the conviction as a basis for removal or denial, or notice of a final removal order based on it (§ 1473.7(b)(2)).
• A plea under a "never occurred" statute. There is a presumption of legal invalidity if the person pleaded guilty or no contest under a statute that provided the arrest and conviction would be deemed never to have occurred after completing requirements, the person completed them, and the disposition has been or could be used for adverse immigration consequences (§ 1473.7(f)(2)). Ask about this if an old drug case ended in that kind of program. The drug charges page covers today's diversion rules.
• A missing court advisement. If the judge never gave the § 1016.5 warning, a separate motion under § 1016.5(b) may also be available, and form CR-187 covers both.
• The kind of conviction. A theft plea, a domestic violence plea and a drug plea each raise different immigration questions, which the immigration attorney evaluates. For theft cases today, see the page on theft and fraud charges in California. How domestic violence cases are charged is explained on the domestic violence charges page.
• The quality of the evidence. Declarations, the prior attorney's notes, documents showing what the person cared about at the time, and proof of ties to the United States all matter under Vivar and Espinoza.

A worked example

For example, imagine a 41-year-old woman in Laguna Niguel who came from Iran with her parents at age nine and has been a permanent resident ever since. This is a hypothetical, not a real case. In 2011 she pleaded guilty to a misdemeanor theft charge in Orange County, did her probation and put it behind her. In 2026 she applies for citizenship and receives a notice from immigration authorities that relies on that conviction.

Her immigration attorney tells her the conviction is the problem in her application. The clock now matters: an immigration-ground motion may be untimely if it is not filed with reasonable diligence after a notice like the one she received (§ 1473.7(b)(2)). Her criminal defense attorney orders the Orange County court file and finds the plea form; she still has emails to her former attorney asking whether the case could "cause problems with my green card." She signs a declaration about her life at the time: her parents and siblings in Irvine, her job, her two U.S. citizen children, and the fact that she has not been back to Iran since childhood and has no home there.

The motion is filed on form CR-187 in the Orange County Superior Court and served on the District Attorney. At the hearing, the question is whether there is a reasonable probability she would have rejected the plea had she understood its immigration consequences. No outcome is certain. If the court grants the motion, she may withdraw the plea (§ 1473.7(f)(3)), and what happens with the original charge after that is a step her attorneys plan for before filing. If she also wonders whether to travel while this is pending, the page on travel outside the U.S. while a California case is open explains the criminal-court side.

Common mistakes with 1473.7 motions

• Waiting after an immigration notice arrives. Reasonable diligence after the notice is part of the timeliness test (§ 1473.7(b)(2)).
• Filing with only a short statement. The California Supreme Court requires objective evidence to corroborate factual claims; a detailed declaration plus documents is stronger than a bare assertion.
• Assuming you must prove your old attorney was ineffective. A finding of legal invalidity may, but need not, include ineffective assistance (§ 1473.7(a)(1)).
• Confusing it with an expungement. A dismissal under Penal Code 1203.4 is a different remedy with different rules; ask an immigration attorney which one addresses your problem.
• Filing in the wrong court or for several cases at once. Form CR-187 says to file in the county where the conviction or sentence was imposed and to use a separate motion for each case number.
• Not coordinating with an immigration attorney. The motion must show the conviction is causing or could cause an immigration problem (§ 1473.7(f)(1)), and that is their field.

What to do this week

1. Find the case number, the court and the date of the conviction; if unsure, ask the court where you were convicted.
2. Order the court file, including the plea form and minutes of the plea hearing.
3. Ask your former defense attorney or office for their file and notes.
4. Collect proof of your ties at the time of the plea: family, work, school, residence, community.
5. Gather any emails, letters or messages from that time about immigration concerns.
6. Keep every immigration notice with its date of receipt, and give copies to both attorneys.
7. Speak with an immigration attorney and a California criminal defense attorney, and authorize them to talk to each other.

Readers who want to know who would handle the criminal-court side, and in which languages, can read about Sourena Sarbazevatan.

Frequently asked questions

Is there a deadline to file a 1473.7 motion?

For the immigration ground, a motion is timely at any time the person is no longer in criminal custody, but it may be found untimely if not filed with reasonable diligence after an immigration notice asserting the conviction, or a final removal order based on it (§ 1473.7(b)). The other two grounds must be filed without undue delay after the evidence was or could have been discovered (§ 1473.7(c)).

Do I have to attend the hearing?

The court may hold the hearing without you if you request it and the court finds good cause why you cannot be present (§ 1473.7(d)). That can matter for someone who is outside the country or in immigration detention.

Can the court grant it without a hearing?

Yes, if the prosecution has no objection to the motion (§ 1473.7(d)).

What is the standard of proof?

A preponderance of the evidence, meaning more likely than not (§ 1473.7(f)(1)). On the immigration ground, the California Supreme Court asks whether there is a reasonable probability the person would have rejected the plea with a correct understanding of its consequences.

Is there an official form?

Yes. Judicial Council form CR-187 is an optional form for motions under § 1016.5 and § 1473.7, revised July 1, 2026, and it carries instructions for people filing on their own.

What if the motion is denied?

The order is appealable (§ 1473.7(g)), and the California Supreme Court has said appellate courts review these rulings independently.

Does vacating the conviction solve my immigration case?

This office does not give immigration advice. What a vacated conviction means for an immigration case is a question for your immigration attorney.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in criminal defense and post-conviction matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.