82 Cal.App.5th 147
Cal. Ct. App.2022Background:
- Andrew Gregor, a naturalized U.S. citizen from Australia, pleaded guilty in 2011 to offenses under Penal Code § 288.4; one felony count was later dismissed and the remaining misdemeanor count resolved with informal probation and eventual dismissal.
- At plea he signed a form acknowledging that if not a U.S. citizen his plea could result in deportation, exclusion, or denial of citizenship.
- In 2016 USCIS notified Gregor his family‑based visa petition for his wife would be denied; he later learned he could not sponsor his father because of the conviction.
- In 2018 Gregor moved under Penal Code § 1473.7 to vacate his conviction, arguing he could not meaningfully understand or accept the immigration consequences of his plea, including inability to sponsor relatives.
- The trial court denied the motion, concluding the inability to sponsor a relative is a collateral/indirect consequence (not an "adverse immigration consequence" under § 1473.7) and that the statutory showing regarding denial of an immigration benefit is tied to timeliness rather than the substantive merits.
- Gregor appealed; the Court of Appeal affirmed, interpreting § 1473.7 as limited to consequences affecting the defendant’s own immigration status (removal, exclusion, denial of naturalization or lawful status) and treating the denial‑of‑benefit showing as a timeliness-related inquiry.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of ability to sponsor a relative for a family‑based visa is an "adverse immigration consequence" under § 1473.7 | The People: sponsorship inability is not an adverse immigration consequence under § 1473.7 | Gregor: inability to sponsor his father (and denial letter re wife) is an immigration benefit denial that qualifies as an adverse immigration consequence permitting vacatur | Held: Not an adverse immigration consequence under § 1473.7; court limits term to consequences affecting defendant’s own immigration status (removal, exclusion, denial of naturalization or lawful status). |
| Whether § 1473.7(e)(1)’s requirement that the conviction "is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit" is a merits element or a timeliness showing | The People: that language implements a timeliness/triggering‑event requirement (not a separate merits element) | Gregor: the denial of an immigration benefit should be treated as showing an adverse immigration consequence for merits under § 1473.7 | Held: The court treats that showing as related to timeliness/triggering events (subdivision (b)) rather than the single substantive ground for relief required under subdivision (a)(1) and (e)(4). |
| Request to redact defendant’s name from published opinion | The People: redaction not warranted in ordinary criminal appeal | Gregor: privacy/anonymity warranted under Cal. Rules of Court, rule 8.90(b)(10),(11) | Held: Denied — criminal defendant seeking relief from denial of plea‑withdrawal motion is not entitled to redaction; request speculative. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment duty to advise noncitizen clients about clear deportation consequences of pleas)
- People v. Martinez, 57 Cal.4th 555 (2013) (immigration consequences can be "material matters" that affect plea decisions)
- People v. Morales, 25 Cal.App.5th 502 (2018) (interpreting § 1473.7 timeliness issues prior to 2019 amendments)
- People v. Perez, 67 Cal.App.5th 1008 (2021) (post‑amendment guidance: timeliness treated via triggering events and reasonable diligence analysis)
- People v. Alatorre, 70 Cal.App.5th 747 (2021) (reasonable diligence as condition affecting whether meritorious § 1473.7 motions must be granted)
- People v. Mejia, 36 Cal.App.5th 859 (2019) (characterizing many immigration consequences as collateral before statutory developments)
- People v. Villa, 45 Cal.4th 1063 (2009) (limitations on habeas relief for persons no longer in custody)