(A)  Outline of this Chapter.  This Chapter will describe the nature of post-conviction relief from conviction and sentence necessary to ameliorate the immigration consequences of a criminal disposition.

 

(1)  Effective Orders Vacating Convictions.  This Chapter describes the nature of a post-conviction order that must be obtained in criminal court in order effectively to eliminate a conviction for immigration purposes, so it cannot trigger deportation as an aggravated felony conviction.  See § § 6.2-6.10, infra.  This includes:

 

            (a) an order vacating a conviction as legally invalid, see § 6.3, infra;

 

            (b) those rare instances in which an order granting federal or state                            rehabilitative relief will effectively eliminate a conviction for                                                immigration purposes, see § 6.11, infra;

 

            (c) the continuing vitality of judicial recommendations against                                 deportation, granted prior to November 29, 1990, and possibly new                                    JRADs issued under compulsion of the United States Constitution,                            see § 6.15, infra; and

 

            (d) state or federal executive pardons, see § 6.16, infra.

 

(2)  Effective Orders Reducing Felonies to Misdemeanors.  This Chapter also describes state criminal court orders reducing felony convictions to misdemeanors, that must be respected by immigration authorities, so that certain convictions no longer constitute aggravated felony convictions.  See § § 6.19-6.23, infra.  The contexts in which this is significant include:

 

            (a)  Certain drug trafficking convictions must be felonies to be                                  aggravated felonies.  See § 6.21, infra.

            (b)  Convictions of  crimes of violence must be felony convictions                           before they can constitute aggravated felonies under 18 U.S.C. §                                   16(b).  See § 6.22, infra.

 

(3)  Effective Orders Vacating or Modifying Sentences.  This Chapter also describes state and federal criminal court orders vacating or modifying sentences that are effective in altering the character of the sentence so the conviction no longer triggers deportation as an aggravated felony.  See § § 6.24-6.28, infra.

 

(4)  Reopening Proceedings After Obtaining Post-Conviction Relief.  Finally, this Chapter discusses how immigration counsel can reopen immigration proceedings so as to avert removal or other adverse immigration consequences after post-conviction relief has been obtained.  See § § 6.29-6.30, infra.  It also discusses reopening criminal proceedings to take advantage of post-conviction relief.  See § 6.31, infra.

 

Other Resources.  For a more thorough discussion of post-conviction relief for immigrants, see N. Tooby, Post-Conviction Relief for Immigrants (2004), the chief value of which is that it collects the widest variety of vehicles and grounds on which post-conviction relief may be sought.  More than 40 different federal constitutional grounds to vacate convictions based on guilty pleas have been collected in that book, that can be used in any jurisdiction within the United States.  It also provides a detained analysis of how to evaluate the chances of obtaining post-conviction relief from the immigration effects of a criminal conviction that can be used anywhere, since it depends on practical factors rather than the vagaries of state law.  Post-Conviction Relief for Immigrants also attempts to list all of the possible vehicles that may be used to obtain post-conviction relief for immigrants in state and federal court.  While it has not proven possible to describe the post-conviction law in detail in each of the different jurisdictions, the book offers a useful outline of the post-conviction process, together with an understanding of the way in which relief may be obtained. 

 

There are two state-specific works concentrating on post-conviction relief for immigrants:

 

California.  See N. Tooby, California Post-Conviction Relief for Immigrants (2001 ed. With 2002 Supp.).  This work collects all California post-conviction vehicles of use to immigrants, and gathers the state and federal grounds for relief, with sample motions and petitions.  It is available on www.CriminalAndImmigrationLaw.com.

Washington.  See Ann Benson, Post-Conviction Relief For Immigrants In Washington State (Washington Defender Association’s Immigration Project, 2004).  This is an excellent book on post-conviction relief for immigrants under Washington State law.  The book is available from the Washington Defenders Immigration Project, 1401 E. Jefferson St. Suite 200, Seattle, WA  98122: Tel: 206-726-3332; Fax: 206-726-3170, Email: defendimmigrants@aol.com

 

All States.  For an excellent compilation of the law governing post-conviction relief in each state, see Donald E. Wilkes, Jr., State Post-Conviction Remedies and Relief Handbook (2006 ed.), which summarizes the pertinent statutes and caselaw in each jurisdiction.

Other

POST CON RELIEF " RESOURCES " STATE BY STATE POST-CONVICTION RELIEF STATUTES
This practice advisory and a link discuss state by state post-conviction relief statutes. http://www.adminrelief.org/resources/item.566101-Post_Conviction_Relief_Resources_by_State They are also on the www.adminrelief.org website.

CRIMINAL DEFENSE - POST-CONVICTION RELIEF - POST CON RELIEF - APPEALS
T. O'Toole, Appeal and Post Conviction Review, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 663 (2d ed. 2007).