The California Court of Appeals, Fifth District, has determined that a judge may deem a 1473.7 motion timely even if it is not filed within a reasonable period of time of the issuance of an adverse immigration decision.
“Only when the condition is satisfied does the court have the discretion to deem a motion untimely. Thus, the lack of reasonable diligence does not automatically require the superior court to deem the motion untimely. Instead, the absence of reasonable diligence subjects the motion to the court’s discretionary authority and, in exercising its discretion, the court might deem the motion timely or might deem it untimely. Section 1473.7 does not provide any guidance for exercising that discretion, such as a list of factors that should be weighed by the court. Based on the lack of explicit statutory guidance, we conclude the well-established general rule governing grants of discretion applies. Thus, the discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. In other words, before exercising its discretionary authority regarding the timeliness of the motion, the court must consider the totality of the circumstances.”
“A comparison of the September 2019 date with December 23, 2019—the date Perez filed his motion—shows it took Perez over two, but less than three, months to file his section 1473.7 motion.” “Here, Perez was physically removed from the United States and was at least 200 miles away from the county where the motion was filed. In such circumstances, we find as a matter of law that Perez acted with reasonable diligence in getting his section 1473.7 motion filed in less than three months after his removal to Mexico. Because Perez acted with reasonable diligence, his motion must be deemed timely pursuant to section 1473.7, subdivision (b)(1).”
The full text of People v. Perez can be found here:
http://sos.metnews.com/sos.cgi?0821//F080837
