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
§ 7.25 4. A State First-Offense Controlled Substances Possession Conviction Must Be a Felony in Order to Be Considered an Aggravated Felony
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A state court conviction of simple possession of a controlled substance is generally considered an aggravated felony for immigration purposes,[79] and for illegal re-entry sentencing purposes,[80] if it is a felony, but not if it is a misdemeanor conviction. See (A), infra. Note the exception to this rule in the Second, Third, and Ninth Circuits, in which a state felony conviction of possession of a controlled substance does not constitute an aggravated felony conviction, for removal purposes, unless it would have been a felony if prosecuted in federal court. See (B), infra.
[79] Matter of Yanez, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).
[80] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).
