Given this new realization of what is involved, the immigrant now seeks (a) to discover the actual immigration consequences of the criminal case, and (b) to avoid them if possible.  Sometimes it is possible for the immigrant to avoid these consequences in immigration court, through the aid of an immigration attorney.  While discretionary relief in immigration court from the adverse immigration consequences of criminal convictions and sentences has been greatly restricted, it still exists to a surprising extent.  Increasingly, however, the same harsh new immigration laws that impose drastic adverse immigration consequences as a result of a criminal case also foreclose any possibility of relief in immigration court.

 

            Under those circumstances, the only hope for the immigrant may be to pursue post-conviction relief in criminal court in an effort to set aside the conviction or sentence, and thereby avoid the adverse immigration consequences of the original disposition of the criminal case.

 

            This task can be very difficult, for a number of reasons.  Too much time may have passed for court and prosecution to be willing to reopen the case.  The client may have passed out of constructive custody, at which point there may be no jurisdiction to pursue habeas corpus, which is the normal vehicle for raising many claims such as ineffective assistance of counsel.  Insufficient time may remain before the immigration consequences become irrevocable.  The courts may be preoccupied with fresh cases, and have little patience or attention to devote to correcting past miscarriages of justice.

 

            Counsel’s tasks are as follows:

1.      To diagnose the immigration problem accurately, and determine the minimum changes in the criminal disposition (plea and sentence) necessary to avoid the immigration damage.

 

2.      To put the original criminal case under a microscope, and detect fundamental errors in the proceedings that are serious enough to warrant reopening the plea or sentence as necessary.[3]

 

3.      To identify a vehicle by which these errors may be raised in an effort to vacate the plea or sentence, or arrange the other changes in the criminal history that are necessary to resolve the problem.[4]

 

4.      To prepare, file, and litigate the post-conviction case to achieve the necessary changes.[5]

 

5.      Once the conviction or sentence has been reopened, to negotiate, or litigate to, a successful outcome of the criminal case that will avoid the immigration damage.[6]

 

6.      To provide immigration counsel with the necessary documentation and information concerning the new resolution of the criminal case that will enable him or her to win the case in immigration court.[7]

 

This volume is intended to provide counsel with the information necessary to do this.

 

[3] See Chapters 6 (convictions) and 7 (sentences), infra.

[4] See Chapters 5 (convictions), 7 (sentences and reduction of level of offense), and 8 (state rehabilitative relief and pardons), infra.

[5] See Chapter 9, infra.

[6] See Chapter 10, infra.

[7] See Chapter 10, infra.

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONSEQUENCES TO COUNSEL OF IAC FINDING
The truth about IAC So what happens to trial counsel after an appellate court makes a finding of ineffective assistance of counsel following a mistake counsel made at trial? ABSOLUTELY NOTHING. Some attorneys are reluctant to speak with appellate counsel about trial decisions based on a fear that an IAC finding might result in some kind of a sanction from the state bar. But this fear is unfounded as there is absolutely no consequence to trial counsel who made a mistake in defending or in preparing to defend a criminal defendant. This has always been the policy of the Office of the Chief Trial Counsel of the State Bar " the unit that handles all matters pertaining to attorney discipline.1 Appellate courts have a duty to notify the state bar after reversing a conviction for IAC, and the bar then checks into the matter looking for one thing " attorney misconduct. Misconduct is qualitatively different from mistakes made at trial (negligence). Misconduct includes things like stealing from the client, sex with the clients wife, or improper contact with witnesses or jurors. The bar looks into the IAC finding to determine whether the case involved misconduct. If not, the matter is concluded and there is no consequence to trial counsel. The bar proceeds on the logical assumption that everyone makes mistakes, and mistakes will be made in most all cases given the number of decisions counsel must make during the often-stressful process. Common mistakes include the failure to investigate facts and defenses, the failure to make proper objections, to properly present evidence, to request the appropriate jury instructions, and to properly defend the defendant at sentencing. The system is set up to identify mistakes that may have contributed to the guilty verdict and to determine whether the defendant should receive a new trial. It contemplates a dialogue between trial and appellate counsel about decisions made during trial. Trial counsel has a continuing duty to the client and there is no reason to avoid the conversation. Appellate counsel has the same duty with successor post-conviction counsel. The defense team consists of the defendant, trial counsel and appellate counsel. Go Team! I recently confirmed the bars method of handling these cases. The state bar attorneys are accessible and very helpful in answering any questions from interested counsel. Thanks to Pat Ford.