The following is a brief overview of the requirements and immigration effects of the various types of post-conviction relief.  Counsel should read the more complete information in the sections referred to, in order to determine a client’s eligibility for, and the immigration effect of, a particular form of relief.

 

            State Rehabilitative Relief.  The Board of Immigration Appeals held that orders vacating or dismissing convictions under state rehabilitative statutes are no longer effective in eliminating a conviction for immigration purposes.  See Chapter 8, infra.  In the Ninth Circuit, however, state rehabilitative relief is effective to eliminate all immigration consequences of first-offense convictions of simple possession of a controlled substance, possession of paraphernalia, and other minor controlled substances convictions that are not violations of federal controlled substances statutes, including felonies as well as misdemeanors. 

 

            Reduction of Felony to Misdemeanor, and Misdemeanor to Infraction.  In some states, a judge can reduce convictions of certain felonies to misdemeanors, if no prison sentence was imposed.  In some cases, a judge can reduce certain common misdemeanors to infractions.  These motions are useful to avoid a one felony or two/three misdemeanors bar, which disqualifies noncitizens from obtaining the benefits of programs such as amnesty, Family Unity, and Temporary Protected Status.  Reduction of a felony to a misdemeanor avoids aggravated felony status for certain “crimes of violence” and convictions of simple possession of a controlled substance.[12]  This motion may also reduce the maximum possible sentence for a conviction to one year, thus enabling it to qualify for the Petty Offense Exception.

 

            Vacation of Judgment by Extraordinary Writ.  Vacating the judgment on a ground of legal invalidity, that came into existence at the same time as the conviction itself, eliminates any conviction, including conviction for a drug offense, for immigration purposes.  See Chapter 4, infra.

 

            A writ of error coram nobis may be granted, in the discretion of the court, on grounds the conviction violates the Constitution or a statute or if a fact existed that did not go to guilt or innocence, but would have prevented the rendition of the judgment if it had been known at the time.  See Chapter 5, infra.

 

            A statutory motion to vacate the judgment may be based on a claim that a state advisal statute has been violated, as where the court fails to give a mandatory warning concerning possible immigration consequences at the time of plea.  See Chapter 5, infra.

 

            A nonstatutory motion to vacate the judgment may sometimes be granted on grounds of ineffective assistance of counsel, or any other ground of constitutional error.  See Chapter 5, infra.

            Other Relief.  A gubernatorial pardon will eliminate immigration effects of one or more crimes involving moral turpitude, or aggravated felonies, or convictions of high speed flight from an immigration checkpoint.  See Chapter 8, infra.  Various means to officially reduce sentence will be given immigration effect and aid in cases in which the adverse immigration effects depend upon  the length of the sentence imposed.  See Chapter 7, infra.

[12]  See Chapter 7, infra.

Other

POST CON RELIEF - WASHINGTON STATE - MANUAL
Ann Benson, Post-Conviction Relief For Immigrants In Washington State (Washington Defender Associations Immigration Project, 2004).