Post-Conviction Relief for Immigrants

Sometimes counsel will encounter a judge or prosecutor with a blanket policy against agreeing to provide immigration relief to noncitizens.  If the relief cannot be obtained at the trial level for this reason, if possible make a record of such a “blanket policy” against noncitizens, and attempt to obtain relief on appeal.

            Overt discrimination on the basis of national origin is forbidden by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.[1]  Nationality is a forbidden and illogical criterion upon which to base state action.  See § 7.111(A), supra.[2]

            Certainly, discretion may not be based upon an impermissible factor, nor an illogical factor.  See § 7.101, supra.  If relief such as early termination of probation, which would be available to a citizen similarly situated, is denied on grounds of a blanket policy against noncitizens, it should be possible to obtain relief on appeal.

            If a judge or prosecutor is highly biased against granting immigration relief, it may sometimes be prudent not to disclose the fact that the relief sought (e.g., early termination of probation, or entry of a plea to a non-moral turpitude offense) will save the client from removal.

            Courts sometimes act against noncitizens solely on the basis of nationality or immigration status.  While the law sometimes permits this, it also prohibits it on occasion as well.  See § 7.108(B), supra.  State law may also prohibit taking certain action against a foreign national.  For example, an opinion of the California Attorney General summarizes the law as of January 8, 1997, stating, “California may not deport an illegal alien convicted of a crime as a condition of granting either probation or parole or make it a crime for such illegal alien to return to the state.  However, California may release the person to federal immigration authorities for deportation by the federal government.”[3]

            On a more practical level, discrimination frequently exists against stereotypes, and can be disarmed or neutralized if the client is transformed from a member of a class against which antipathy is held, into a human being.  Humanizing clients is a familiar task for all lawyers.  For example, if it is possible to introduce the prosecutor to a client and they shake hands, the prosecutor has more difficulty treating the client as a stereotype thereafter.

[1] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[2] See, e.g., Truax v. Raich, 239 U.S. 33 (1915) (invalidating statute requiring employers to hire a certain percentage of citizens).

[3] Opinions of the California Attorney General, No. 96-801 (January 8, 1997), p. 1 (“May California deport an illegal alien convicted of a crime as a condition of granting either probation or parole, and may it make it a crime for such illegal alien to return to the state?”).