Post-Conviction Relief for Immigrants
Chapter 2. Evaluating the Chances of Obtaining Post-Conviction Relief
- §2.1 I. Identifying Winnable Cases: Introduction and Overview
- §2.2 II. A Triage Guide to Post-Conviction Cases
- §2.3 A. The Current Status of the Client
- §2.4 1. The Client Is Clean and Sober
- §2.5 2. The Client Has Strong Equities
- §2.6 3. The Client Has Served the Sentence and Is Now Out of Custody
- §2.7 4. The Client Has No Outstanding or Potential Arrest Warrants
- §2.8 5. The Client Has No Current Aggravated Re-entry Exposure
- §2.9 6. The Client is Lawfully Present in the United States
- §2.10 B. The Criminal Situation
- §2.11 1. A Small Criminal Case Has Large Immigration Effects
- §2.12 2. The Client Has 1 or Few Damaging Convictions
- §2.13 3. Number and Diversity of Original Charges
- §2.14 4. The Evidence of Guilt is Weak, or the Client Has a Plausible Claim of (at Least Partial) Innocence
- §2.15 5. The Client Was Charged Jointly With 1 or More Codefendants
- §2.16 6. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem
- §2.17 7. There is Small Risk the Client Will Receive Additional Time in Custody if the Case is Reopened and the Client is Reconvicted
- §2.18 a. Adverse Criminal Consequences
- §2.19 b. Adverse Immigration Consequences
- §2.20 8. The Jurisdiction Where the Conviction Occurred is Relatively Sympathetic
- §2.21 9. Incomplete Initial Defense Investigation
- §2.22 10. Technical Problems with Prosecution Case
- §2.23 C. Timing of the Case
- §2.24 1. Federal Time Limits
- §2.25 a. Motion to Vacate Sentence Under 2255
- §2.26 b. Coram Nobis Time Limits
- §2.27 c. Attacking State Convictions
- §2.28 2. Time Limits Within Which Actions for State
- §2.29 a. California Habeas Corpus and Nonstatutory Constitutional Motion to Vacate
- §2.30 b. California Coram Nobis for Violation of Penal Code 1016.5 Penal Code 1203.4(a) Misdemeanor
- §2.31 c. California Motion to Vacate Conviction
- §2.32 d. Expungement Pursuant to California
- §2.33 e. California Motion to Reduce Felony to
- §2.34 3. The Client Has 6 Months or More Before Irrevocable Immigration Damage Occurs
- §2.35 4. There is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated
- §2.36 5. The Records Necessary to Establish Error in the Criminal Case Still Exist
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