Post-Conviction Relief for Immigrants

Chapter

§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

§ 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

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There are two potential disadvantages to reopening some cases. First, the defendant may receive harsher criminal penalties the second time around, even though s/he must normally be given full credit for time served. Second, the case may result in convictions and sentences that trigger immigration consequences even worse than those originally suffered.