Post-Conviction Relief for Immigrants

In order to use state or federal habeas, the petitioner must establish illegal custody.  For example, thirty-two states have some type of custody requirement like that of the common law writ of habeas corpus,[301] although usually it is not necessary that the petitioner be incarcerated at the time to be eligible.  In addition to traditional forms of custody, such as jail, prison, probation and parole, it is possible to argue two newer forms:

            1.         The petitioner is in INS custody (arrest, physical incarceration, or release on bond pending INS court appearances) solely as a result of the unconstitutional criminal conviction; and

            2.         The petitioner is in constructive custody as a result of the conviction since s/he is required to register as a narcotics or sex offender by going into the police station every time s/he moves and registering on pain of criminal prosecution.

These newer arguments have yet to be accepted by federal courts.  See § § 5.35, et seq., supra.

            In addition to actual incarceration, the concept of custody includes constructive custody such as release on bond, probation, or parole.[302]  Thus, it is important to file the petition before probation or parole expires.  (A nonstatutory motion to vacate may be attempted on constitutional grounds if the client is no longer in sufficient custody for habeas corpus to be employed.)

            The court has habeas jurisdiction if the client is in “custody” at the time the petition is filed, even if the client is later released from custody, so long as the client will still suffer damage from denial of habeas relief and the case is therefore not moot.[303]  Thus, if the client is on parole when habeas is filed but is released from parole before the hearing, the court still has jurisdiction so long as immigration or other collateral consequences continue to hinge on the outcome of the habeas hearing.  See § 5.38, supra.

[301] Id. at 120.

[302] See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373 (1963); Varga v. Rosenberg, 237 F.Supp. 282, 285 (S.D. Cal. 1964).

[303] E.g., Carafas v. LaVallee, 391 U.S. 234 (1968) (habeas not moot so long as petitioner continues to suffer actual damage from the conviction, such as collateral consequences of inability to serve as a juror or to vote); In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239 (1975).