Post-Conviction Relief for Immigrants



 
 

§ 5.8 1. Developing a Strategy

 
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The starting point in developing a strategy to minimize adverse immigration consequences of a conviction is to determine exactly what final result in the criminal courts is necessary to achieve the client’s objectives.  Immigration counsel can be helpful in developing this information.  Second, how much time is available to achieve this result?  This question is a combination of immigration and criminal law: What are the immigration effects of the various possible outcomes in the criminal courts?  Which effects can the client live with?  What changes can be achieved through criminal post‑conviction relief?

 

           


The analysis requires four tasks: 

 

            a.         make a chronological list of all criminal convictions and sentences suffered by the client — in all jurisdictions;

 

            b.         determine which of them (singly or in combination) trigger adverse immigration consequences;

 

            c.         for each conviction, or combination of convictions, that produces an adverse immigration effect, determine what alteration in the criminal conviction or sentence is necessary to produce an immigration result that can be tolerated; and

 

            d.         investigate each conviction to determine whether the necessary result can be achieved.

 

            There are two basic avenues for achieving post‑conviction relief:

 

            1.         An attack on the validity of the conviction which, if successful, results in vacating the conviction.  The client is then in the same position s/he occupied immediately prior to the plea or verdict of guilty and thus needs to mount an effective defense to the charges a second time.  Vacation of judgment eliminates the all immigration effects of all convictions,[15] including convictions of drug offenses.

 

            2.         State rehabilitative relief, including various procedures, such as expungements, that accept the validity of the conviction, but seek to alter it to remove some or all of the adverse immigration consequences.  Expungements, dismissals, and even orders vacating convictions that are entered pursuant to state rehabilitative statutes are ineffective in eliminating convictions for immigration purposes,[16] although they may lessen the negative impact of a conviction in a discretionary decision-making context.

 

            The results of successful post‑conviction relief can include vacating the conviction, acquittal, dismissal, reduction from felony to misdemeanor or from misdemeanor to infraction, delay in finality of the conviction until a certain time period expires, etc.

            Strategic Factors:  Factors somewhat contrary to normal criminal defense strategy may play an important role, including the fact that the case may be quite old, sometimes many years old, before post‑conviction relief is sought to reopen the conviction.  It may therefore be difficult for the prosecution to prove its case if the conviction is successfully reopened because of (a) lost witnesses, (b) destroyed evidence, (c) faded memories, (d) witnesses who are reluctant to reopen the closed incident or trauma, (e) lost prosecution or police files, (f) new prosecutors, and the like.  See Chapter 2, supra.

 

            Moreover, the prosecution, court, police and victim(s) may not care very deeply whether or not the client is convicted again because (a) the client has served the sentence, (b) the client has enjoyed a good record before and since the original conviction, (c) the wounds have healed, etc.  Also, courts and counsel often now have greater consciousness about the need to protect clients against adverse immigration consequences of criminal convictions.  Court and prosecutor, however, often have limited willingness to devote time and attention to a case they view as an old, closed case.  There usually is no upside for them — no benefit to be had.  Many of these factors work against the client in attempting to reopen a conviction but work powerfully in the client’s favor once the conviction has been forced open.


[15] Remember that the act of committing some offenses (such as prostitution, alcohol, and drug offenses) may have adverse immigration effects even if no conviction results in the criminal case.  See ILRC, § § 2.3, 8.19; N. Tooby, Criminal Defense of Immigrants, § 2.21 (2003).

[16] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc).

 

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