Post-Conviction Relief for Immigrants

 

Strong equities are very useful in motivating criminal court and prosecutor to give the client a break.  This factor is nearly indispensable to successful post-conviction work.

 

            If this factor is not present, the case can be won only if it presents extreme errors in the process that led to the conviction, plus enough evidence of innocence or technical problems in the prosecution case in effect to force an immigration-harmless result through negotiation or litigation.

 

            Favorable equities are at least as important as the legal argument in obtaining post‑conviction relief, if not more so.  Counsel may use them to persuade judges, prosecutors, the client’s former defense lawyers, and others to support the client’s efforts to remain in the United States. 

 

            Common positive equitable factors include:

 

·          The client has lived in the U.S. for many years.

 

·          The client has obtained, or at least tried to obtain, lawful immigration status here.

 

·          The client will be able to obtain or keep lawful status if post‑conviction relief is granted.

 

·          The client has numerous close relatives who live in the U.S. now and have lived here lawfully for many years.

 

·          Many of the client’s relatives are U.S. citizens or permanent residents, or are in the process of becoming so.

 

·          The client’s spouse and children are U.S. citizens or permanent residents, and it would be a hardship to divide the family and deprive the children of their parent, or, alternatively, to force innocent family members into exile.

 

·          The client has long held a job here, and the family might be thrown onto welfare without the client’s economic support.  Even without this degree of economic hardship, it may still be significant that the minor children will be de facto deprived of the child support to which they are legally and morally entitled if the bread-winner is permanently deported.

 

·          The client has many close friends here, and is an important and respected member of the community, active in church, community activities, and the like.      

 

·          The client has already served the criminal sentence, and paid the appropriate debt to society.

 

·          The client has suffered the full punishment that would be visited on any U.S. citizen who committed the same offense.  Additional punishment, such as permanent banishment from friends and family, would be unfair.

 

·          The client has been rehabilitated since the offense, and has had a good record on probation, in custody, or on parole.

 

·          The victim of the crime (or the police officer, probation officer, etc.) is not in favor of removal of the client.  This may be especially significant in domestic violence cases.

 

·          The client will face political or racial persecution, danger, abuse, poverty, or unhealthy conditions if removed to the home country.  Criminal courts are not jaded by, nor unduly skeptical of, claims that torture or hardship will ensue if the client is deported to a third-world country, because of wide-spread xenophobia in the law enforcement establishment.  In other words, prosecutors and judges find it easy to believe that many foreign nations are places where life is nasty, brutish, and short, and corruption and torture are rampant.

 

·          The client’s behavior was partly due to trauma caused by events that occurred in the home country, such as war, death or assassination of relatives, natural catastrophe, or poverty approaching starvation.[1]

 

·          The client has taken himself or herself in hand, is obtaining counseling, etc.

 

            Many other examples will be presented in individual cases, such as artistic, religious or philanthropic contributions, ownership of property or other ties to the community, and the like.

 

            The equities should be recorded in a declaration from the client, documented by as much supporting information as possible, and corroborated by other reliable witnesses, so proof of their existence does not depend on the client’s word alone.  These equities can be repeated as litigation and negotiation themes.

 

PRACTICE POINTER:  In describing the client’s past life, do not make admissions concerning drug trafficking, addiction, or abuse, habitual drunkenness, or prostitution.  The immigration courts could use such a declaration — even without a conviction for such behavior — as a basis for deportation or exclusion.[2]

 

[1] In fact, defendants from developing countries, and certainly countries of long civil war such as in Central America and Southeast Asia, often have endured terrible events through no fault of their own.  These events often, in turn, lead to emotional problems and criminal acts.  Often such people made valiant attempts to save relatives in the home country, and showed great determination just to make it to the United States.  If the client is willing to discuss such events with you, it might prove helpful to provide a short description to the judge while emphasizing that the client has regained the will to persevere and wants to take advantage of American life.  Regarding extreme poverty, answers to simple questions such as “When did you own your first pair of shoes?” or “What did you customarily eat for breakfast, lunch and dinner before coming to the United States?” may assist you to paint a picture of the client’s life in rural areas or refugee camps.  It may well be that post‑traumatic stress disorder, resulting from traumatic experiences in the country of origin, provides an explanation, defense, excuse, or mitigation for the criminal offense, and that psychiatric or psychological evaluation would yield valuable information and documentation.

[2] See N. Tooby, criminal defense of immigrants, Chapter 2, § IV (2003), for a list of conduct-related grounds of inadmissibility and removal as to which admissions by the client should be avoided.