Open Letter on What’s Up with Us at the Law Offices of Norton Tooby

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The notion of court orders nunc pro tunc is a very vague equitable doctrine.  Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal court’s conclusion that the order or plea was entered on the backdated date cf. United States v. Esparza.  The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity. 

A plea to simple witness dissuasion, in violation of California Penal Code § 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended. See generally N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005) (updated monthly on www.NortonTooby.com.

The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea.

The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors.  Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense.  This is useful where it is important to have a misdemeanor conviction, rather than a felony.  E.g., aggravated felony crimes of violence under 18 U.S.C.

By Norton Tooby

            A plea to simple witness dissuasion, in violation of California Penal Code § 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended.  See generally N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005)(updated monthly on www.NortonTooby.com).

By Norton Tooby

The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no counsel who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

            There are, however, three possible grounds of legal invalidity—two stronger and the third so weak it probably should not be made.

Many aggravated felony definitions require that the court order a term of imprisonment for a qualifying conviction of one year or more, or they are not aggravated felonies.  For many of the most common aggravated felonies, the sentence imposed is decisive.  These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court.  Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status.  See N. TOOBY & J.

In Lujan-Armendariz v. INS, 222 728 (9th Cir. 2000), the Ninth Circuit held that state rehabilitative relief from first-offense simple possession convictions was effective to eliminate all immigration consequences, by analogy to the Federal First Offender Act, 18 U.S.C. § 3607.  While overruling Lujan prospectively, the Ninth Circuit continues to recognize state rehabilitative relief as erasing all immigration consequences of qualifying first controlled substances offenses, so long as the conviction occurred on or before July 14, 2011.  (Nunez-Reyes v.

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