Munger, Tolles & Olson achieved a victory before the California Supreme Court on behalf of Robert Vivar, who is now one step closer to being reunited with his family in the United States.
Mr. Vivar has been fighting to vacate an unlawful criminal conviction for almost two decades. In 2002, he entered a guilty plea without being properly advised of the immigration consequences of that plea and was soon after deported to Mexico, a country he left at the age of six.
After Mr. Vivar spent years unsuccessfully fighting to undo this result in the courts, the California Legislature enacted a new law, Penal Code section 1473.7, permitting non-citizens to challenge old, unlawful convictions based on guilty pleas with unanticipated immigration consequences. Mr. Vivar filed a motion to vacate his 2002 conviction under this statute, arguing that he received ineffective assistance of counsel. The trial court denied Mr. Vivar’s motion and the Court of Appeal affirmed, concluding that while counsel had failed to offer Mr. Vivar competent advice about the immigration consequences, Mr. Vivar failed to demonstrate any prejudice from the error.
The California Supreme Court reversed, remanding with instructions to vacate Mr. Vivar’s conviction. The Court’s opinion clarifies key points relating to motions to vacate criminal convictions by non-citizen defendants based on ineffective assistance of counsel, and the appellate standard of review applicable to those motions.
Mr. Vivar looks forward to the day he can walk back across the border to the United States – a country he considered his home for forty years.
Joe Lee , Dane Shikman, and David Freenock secured this result for Mr. Vivar, with the help of partner Ben Horwich.