Post-Conviction Relief for Immigrants

Sentencing counsel must also consider the need to obtain post‑conviction relief to eliminate immigration consequences.

In the case of a first offense simple possession, the Ninth Circuit has held that a grant of state rehabilitative relief will be effective to eliminate its immigration effects.[266]  For such a conviction, counsel could have requested a sentence under which the defendant can eventually qualify for state rehabilitative relief, so as to eliminate the adverse immigration consequences of the conviction.

            As in People v. Barocio,[267] for convictions with sentence hearings occurring before November 29, 1990, counsel should have requested that the trial court grant a judicial recommendation against deportation (JRAD) to prevent immigration consequences of a conviction of a crime involving moral turpitude, pursuant to former INA § 241(b)(2), 8 U.S.C. § 1251(b)(2).

            Counsel could have requested a judgment imposing a sentence of one year or less, making a conviction of an alternative felony‑misdemeanor into a misdemeanor by operation of law under some state statutes.[268]  This would prevent the felony from barring eligibility for amnesty, Family Unity or TPS.[269] 

            Counsel could have requested that the client be placed on felony probation for a period of time, and then that the offense be reduced to a misdemeanor upon the successful completion of probation pursuant to applicable state statutes.[270]  This would also avoid a felony which could disqualify the client from legalization under the “one felony, three misdemeanor” rule.

[266] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (footnotes omitted).

[267] People v. Barocio, 216 Cal.App.3d 99 (1989).

[268] E.g., California Penal Code § 17(b)(1).

[269] See California Criminal Law and Immigration, Chapter 11.

[270] See, e.g., California Penal Code § 17(b)(3).