Until 2009, criminal defendants whose convictions were legally invalid but who had already been released from state custody could seek vacatur of those convictions through a writ of coram nobis. Then the California Supreme Court eliminated that option, holding that coram nobis was not applicable to post-custodial defendants. This left a procedural gap: if a defendant had already been released from custody, there was no way in which he or she could seek to vacate an unlawful conviction.
Horvitz & Levy’s clients (the American Civil Liberties Union, Immigrant Legal Resource Center, the California Attorneys for Criminal Justice, and California Public Defenders Association) sponsored AB 813, which plugged the gap. That bill was codified as Penal Code section 1473.7, and allows post-custodial defendants to seek vacatur of prior convictions that were never legally valid in the first place because the defendant did not meaningfully understand the immigration consequences of a plea. Nevertheless, the federal government for many years took the position that such vacaturs were solely rehabilitative in nature and intended only to “alleviate” the federal immigration consequences of an otherwise-valid conviction, which a state legislature may not do.
Horvitz & Levy first prepared an amicus brief for a different Ninth Circuit appeal, explaining why the statute merely provides a procedural vehicle for providing post-conviction relief from convictions that were legally defective from their inception, which means that the conviction is invalid and cannot be used as a basis for later federal immigration action. In an apparent effort to avoid a ruling disapproving of its legal position, the federal government settled that appeal as well as another one in which Horvitz & Levy filed the same brief. In a third attempt at securing a holding on this question, Horvitz & Levy filed its brief in Bent v. Garland. The federal government finally admitted its position was incorrect. The Ninth Circuit held that the government’s request for a remand was not frivolous because Horvitz & Levy’s interpretation of the statute was the correct one. The court quoted from our brief to support its holding, which will go on to benefit countless immigrants in California.
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