Post-Conviction Relief for Immigrants

When ineffective assistance of counsel results in prejudice against a client, the proper remedy is to place the client in the same position s/he would have occupied at the time the error occurred under the law as it existed at that time.[103]  Thus, the proper remedy for ineffective assistance of counsel at sentencing is to give the defendant the sentence s/he would likely have received absent counsel’s error.[104]  In the alternative, the defendant should be given a fresh sentencing hearing with all possibilities open that were open at the time of the original sentencing. 

It is important for counsel to offer the criminal court a ground of invalidity of the original conviction or sentence that is separate from the goal of obtaining an opportunity to receive a timely JRAD.[105]

[103] See Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (where counsel was ineffective for failing to file a suspension application due in 1994, before the stop-time rule of NACARA came into effect in 1997, the proper remedy required use of the deadline in effect in 1994 when the ineffectiveness occurred, to allow timely filing); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[104] United States v. Fernandez, 2000 WL 1716436 (S.D.N.Y. 2000).

[105] See United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840 (1954) (dissenting opinion); United States v. Sambro, 454 F.2d 918, 924-27 (D.C. Cir. 1971) (dissenting opinion).