Post-Conviction Relief for Immigrants
- §7.1 I. Introduction
- §7.2 II. Immigration Consequences of Sentence
- §7.3 A. Definition of "Sentence Imposed"
- §7.4 B. Length of "Sentence Imposed"
- §7.5 1. Aggravated Felonies Requiring 1-Year "Sentence Imposed"
- §7.6 a. The 1-Year List
- §7.7 b. Reduction of Sentence Below 1 Year
- §7.8 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less
- §7.9 a. Petty Offense Exception Generally
- §7.10 b. Effects of Petty Offense Exception in Specific Immigration Contexts
- §7.11 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More
- §7.12 4. Mandatory Detention is Triggered if a Noncitizen is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed
- §7.13 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §7.14 6. A Conviction is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed is 1 Year or Less, Even If the Maximum Sentence is Greater
- §7.15 C. Length of Actual Confinement
- §7.16 1. To Be Eligible for the Waiver of Deportability Under Former INA 212(c), the Noncitizen Must Avoid Service of 5 Actual Years or More in Custody for Aggravated Felony Conviction(s)
- §7.17 2. A Noncitizen is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More
- §7.18 3. Situations That Require Good Moral Character
- §7.19 D. Naturalization May Not Be Granted if the Applicant is Currently on Probation or Parole
- §7.20 E. The Sentencing Judgment, Which Forms Part of the “Record of Conviction,” Can Lead to Adverse Immigration Consequences
- §7.21 F. Immigration Consequences of Reducing the Level of the Offense from Felony to Misdemeanor
- §7.22 1. The Most Recent Sentence Determines the Immigration Consequences of the Conviction
- §7.23 2. The Felony/Misdemeanor Distinction in Immigration Law
- §7.24 3. Some Crimes of Violence are Aggravated Felonies Only if the Conviction is a Felony
- §7.25 4. A State First-Offense Controlled Substances Possession Conviction Must Be a Felony in Order to Be Considered an Aggravated Felony
- §7.26 5. Felony-Misdemeanor Offenses that are Treated As, or Reduced To Misdemeanor Offenses Do Not Constitute Aggravated Felonies as Long as They Would Be Misdemeanors Under Federal Law
- §7.27 6. 1 Felony Conviction Disqualifies an Immigrant from Eligibility for a Number of Immigration Benefits
- §7.28 a. The Legalization Program
- §7.29 b. "Special Agricultural Worker" (SAW) Legalization Program
- §7.30 c. Family Unity Program
- §7.31 d. Temporary Protected Status
- §7.32 e. Political Asylum
- §7.33 f. Restriction on Removal, Formerly Withholding of Deportation
- §7.34 7. Effect of a Felony Conviction on Criminal Sentences
- §7.35 G. Reduction of Maximum Sentence To or Below 1 Year
- §7.36 1. Petty Offense Exception United States Permanent Residents Non-Lawful Permanent Residents
- §7.37 a. Admissibility; the Ability to Enter the United States
- §7.38 b. Cancellation of Removal for Lawful Permanent Residents
- §7.39 c. Cancellation of Removal for Non-Lawful Permanent Residents
- §7.40 d. Good Moral Character
- §7.41 e. Lawful Permanent Resident Status
- §7.42 f. Naturalization
- §7.43 g. Registry
- §7.44 h. Suspension of Deportation
- §7.45 i. Violence Against Women Act
- §7.46 j. Voluntary Departure at End of Removal Proceedings
- §7.47 k. Reduction from Felony to Misdemeanor Changes Maximum Sentence to 1 Year, Qualifying for the Petty Offense Exception
- §7.48 2. Reduction of Maximum Sentence Below 1 Year to Avoid Removal for 1 Conviction of a Crime of Moral Turpitude
- §7.49 3. Alphabetical Checklist of Applicable Immigration Contexts
- §7.50 III. Obtaining an Effective Order Vacating or Reducing a Sentence
- §7.51 A. Vacating the Conviction Vacates the Sentence
- §7.52 B. Vacating the Original Sentence on a Ground of Legal Invalidity
- §7.53 C. Obtaining an Order Modifying the Original Sentence
- §7.54 D. Modifying a Sentence Under a State Rehabilitative Statute
- §7.55 IV. Procedural Vehicles for Vacating or Reducing the Sentence
- §7.56 A. Direct Appeal from Sentence
- §7.57 B. Petition for Writ of Habeas Corpus
- §7.58 C. Non-Statutory Motion to Vacate Sentence
- §7.59 D. Petition for a Writ of Error Coram Nobis
- §7.60 E. Motion to Correct Void Sentence
- §7.61 F. Commutation or Correction of Sentence
- §7.62 G. Motion to Modify Probationary Sentence
- §7.63 H. Motion to Shorten Probation
- §7.64 I. Shortening Parole
- §7.65 V. Grounds to Vacate the Sentence
- §7.66 A. Choice of Ground
- §7.67 1. Any Ground Will Do
- §7.68 2. Immigration-Related Grounds
- §7.69 3. Non-Immigration Related Grounds
- §7.70 B. Relationship Between Grounds to Vacate Convictions and Grounds to Vacate Sentence
- §7.71 1. Vacating Conviction Vacates Sentence
- §7.72 2. Many Conviction Grounds Apply at Sentence
- §7.73 3. Court Must Reaffirm Validity of Plea at Time of Sentence
- §7.74 C. Violations of the Right to Counsel
- §7.75 1. The Right to Counsel
- §7.76 2. Ineffective Assistance of Counsel
- §7.77 3. Immigration-Related Ineffective Assistance
- §7.78 a. Failure to Investigate the Facts
- §7.79 b. Failure to Present Mitigating Information
- §7.80 c. Failure to Research the Law
- §7.81 d. Failure to Correct Error of Fact or Law
- §7.82 e. Failure to Assist in Withdrawal of Plea
- §7.83 f. Failure to Advise About Appeal
- §7.84 4. Examples of IAC Concerning Immigration Consequences of Sentence
- §7.85 a. Moral Turpitude Offenses
- §7.86 b. Length of Sentence of Incarceration
- §7.87 c. Aggravated Felonies
- §7.88 d. Anticipating Post-Conviction Relief
- §7.89 e. Other Examples
- §7.90 5. Other Examples
- §7.91 D. Substantive Constitutional Guarantees
- §7.92 1. Cruel or Unusual Punishment
- §7.93 2. Unconstitutionally Vague Sentence Statute
- §7.94 3. Ex Post Facto Violations
- §7.95 4. Vindictive Sentencing
- §7.96 5. Withholding of Exculpatory Evidence
- §7.97 6. Breach of Plea Agreement at Sentence
- §7.98 7. Other Guarantees
- §7.99 E. Due Process Rights in the Sentencing Hearing
- §7.100 1. Right to Jury Determination of Facts Increasing Maximum Sentence
- §7.101 2. Judicial Awareness of Discretion
- §7.102 3. Notice and Opportunity to Be Heard
- §7.103 4. Allocution
- §7.104 5. Right to Accurate Information
- §7.105 6. Right Against Use of Unreliable Hearsay
- §7.106 7. Right Against Use of Improper Evidence
- §7.107 8. Improper Victim Impact Evidence
- §7.108 9. Prosecutorial Misconduct
- §7.109 10. Right to Individualized Consideration
- §7.110 11. Mental Incompetence at Sentence
- §7.111 12. Judicial Bias or Misconduct
- §7.112 13. Exclusion of Relevant Information
- §7.113 14. Other Due Process Violations
- §7.114 F. Other Sentence Defects
- §7.115 1. Invalid Prior Conviction
- §7.116 2. Illegal Sentence
- §7.117 3. Lack of Presentence Report
- §7.118 4. Unreasonable Delay in Imposition of Sentence
- §7.119 5. Other Sentence Defects
- §7.120 VI. Post-Conviction Reduction of Felony to Misdemeanor
- §7.121 A. Motion to Reduce a Felony to a Misdemeanor
- §7.122 1. Basic Requirements
- §7.123 2. Definition of Reducible Offenses
- §7.124 3. The Required Sentence
- §7.125 a. Generally
- §7.126 b. A Sentence to State Prison — Even if Execution Is Suspended — Disqualifies the Defendant from Reducing the Offense to a Misdemeanor
- §7.127 4. Standard for Granting the Reduction
- §7.128 5. Procedure
- §7.129 6. Timing of the Motion of Probation
- §7.130 7. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Termination
- §7.131 8. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Conviction Has Been Expunged
- §7.132 9. Review of Grant or Denial of Motion to Reduce
- §7.133 VII. Motion to Reduce a Misdemeanor to an Infraction
- §7.134 A. Definition of Misdemeanor Conviction
- §7.135 B. Immigration Contexts in Which the Client Benefits from Reducing Misdemeanors to Infractions
- §7.136 C. Criminal Benefits of Reducing Misdemeanors to Infractions
- §7.137 D. Motion Under California Penal Code 17(d) to Reduce Certain Misdemeanors to Infractions
§ 7.7 b. Reduction of Sentence Below 1 Year
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If an offense is on the list given above, and the noncitizen has received a sentence imposed of one year in custody, either in the form of a state prison sentence or a custody order as a condition of probation, it is necessary to reduce or vacate that sentence in order to avoid the most serious immigration consequences any conviction can have. Once the original sentence has been vacated, it is necessary to persuade the court to (a) suspend imposition of sentence (or use equivalent state procedure so that no prison sentence at all is ordered to be served), and to require service of 364 days in custody or less as a condition of probation, or (b) impose a sentence of less than one year as a straight judgment.
Two techniques by which courts may be persuaded to enlarge the category of offenses in which to impose 364-day sentences are: (a) waiving pre-sentence credit for time served, in return for a sentence of less than one year in custody; and (b) obtaining sentences of less than one year on each of a number of different counts, even if they are ordered to be served consecutively.[17]
[17] See generally N. Tooby, Criminal Defense of Immigrants, Chapter 5 (2003).
