Post-Conviction Relief for Immigrants

Vacating or reducing criminal sentences is one of the most important areas of post-conviction relief for immigrants, since it is frequently possible to arrange a modest change in the judgment, and thereby confer tremendous immigration benefits upon the client.  Convincing immigration and federal courts that the altered sentence is the only sentence from which immigration consequences can flow is also easier than is the case with vacated convictions.

            Any effort to avoid immigration consequences of a criminal sentence by an attempt to vacate or reduce the sentence involves three stages: (1) the vacation or reduction of the sentence itself in criminal court, (2) handling the criminal case the second time around so as to minimize the adverse immigration consequences, and (3) obtaining an order reopening and terminating removal proceedings that were based on the previous sentence.

            Different attorneys with different skills may best be able to handle these different stages.  An attorney experienced in post‑conviction relief, or better yet, the immigration aspects of post-conviction relief, is often best equipped to vacate or reduce a sentence.  Once that has been achieved, standard criminal defense tactics will often work best to minimize the adverse immigration consequences of any new sentence.  A public defender or other criminal defense attorney can help the client here, as long as s/he has a reliable source of immigration advice on what specific objectives to seek in order to avoid removal and the other adverse immigration consequences that could result from any new sentence.   Immigration counsel, of course, must then defend the client against the potential immigration consequences of the new disposition.

            This chapter discusses the many ways in which a sentence can trigger or affect adverse immigration consequences.

            This chapter will also discuss various forms of post-conviction relief which can have the effect of altering or reducing these aspects of a criminal sentence.  The following list includes most common forms of post-conviction relief capable of vacating or modifying a criminal sentence:

(1)  Direct appeal from the sentence (see § 7.56, infra),

(2)  Petition for a writ of habeas corpus (see § 7.57, infra),

(3)  Non-statutory motion to vacate the sentence (see § 7.58, infra),

(4)  Petition for a writ of coram nobis (see § 7.59, infra),

(5)  Motion to correct void sentence (see § 7.60, infra),

(6)  Motion to recall sentence (see § 7.61, infra),

(7)  Motion to modify the conditions of probation (see § 7.62, infra), and

(8)  Motion to shorten probation or parole (see § § 7.63-7.64 infra).

Certain important immigration consequences of a conviction can be changed by means of a motion to reduce the level of the offense, from felony to misdemeanor, or from misdemeanor to infraction.  These issues are discussed in § § 7.121 et seq., infra.