By Leslie Ortiz
WOODLAND, CA – Deputy Public Defender and Immigration specialist Apurva Behal last week here in Yolo County Superior Court argued a defendant was not advised appropriately of their immigration status in two cases from 2007 and 2017, and now may face deportation leading to “essentially exile.”
The seemingly complicated issue led the judge to take the matter under advisement.
Judge David Rosenberg began the hearing by stating that he read over the papers that were submitted and asked if Deputy District Attorney Jonathan Raven or Behal, representing Jaime Bautista, had any additional thoughts.
Raven had nothing further to add, however Behal wanted to discuss the matter more.
Behal explained Penal Code section 1473.7 “was created so that individuals no longer in criminal custody could vacate prior sentences where they…did not meaningfully understand, could not defend against, and could not knowingly accept the immigration consequences that those pleas would hold.”
“That’s exactly what [Bautista] is asking for today in those 2007 and the 2017 matters,” said the PD, adding the prosecution argued that Bautista’s frequent contact with the criminal justice system cast doubt on his citizenship status.
However, Judge Rosenberg stated that “that argument doesn’t…resonate with the court,” noting “just because they’ve been to the criminal justice system many times, you don’t stop advising them of their rights.
“So I think the same logic applies here.” Judge Rosenberg said.
“The exact issue here is the aggravated felony…the fact that these two convictions have become aggravated felonies” Behal said.
Judge Rosenberg asked, “Aren’t you asking the court to go down a rabbit hole of what might have happened, what someone might have done, have they been given certain advice?”
Behal acknowledged that, adding “we can’t say what if, especially if [Bautista] was not given the proper advice.” Behal stated that in the 2007 case sentencing, there are no notes on file for a declaration that was made.
“It’s clear to us that.. [Bautista] wasn’t even questioned about his immigration status,” Behal said, and arguing in regard to the 2017 case, “It’s a completely improper….advisement. It says the immigration consequences…that can and probably will occur…that is not enough.”
Behal added that when immigration consequences of a specific charge are known, it is the attorney’s obligation to advise of the “exact” immigration consequences.
Judge Rosenberg stated, “Let’s assume… that I agree with your motion and grant the motion. So what’s Mr. Bautista’s status at that point?”
Behal stated that since he wouldn’t have any aggravated felony convictions, Bautista would be able to apply for cancelation of removal (from the U.S.).
“So he’s really back to square one as if the pleas never happened,” Judge Rosenberg said. “The equity absolutely favors Mr. Bautista.” Judge Rosenberg said. “But does the law?”
On behalf of the prosecution, DDA Raven stated, “Back then I don’t think [Bautista] would have gotten a different offer had immigration consequences been raised before.”
Another representative of Bautista, in a case that was pending in Yolo County Superior Court for a felony DUI, stated that “we absolutely would have negotiated something or we would have gone to trial.”
Judge Rosenberg asked if Raven had any final thoughts and Raven said that whatever the judge decided was fine.
Judge Rosenberg decided to take the matter under submission, something, he said, was rare, noting that in “18 years [he’s] taken…three cases under submission.”