Post-Conviction Relief for Immigrants

If the client has been deported, it becomes more difficult to obtain evidence from the client for use in the post-conviction proceeding.  It is, however, possible to do so.  First, counsel can obtain a declaration from the client under penalty of perjury that is notarized.  Such a declaration would appear to be as admissible in state court as a declaration signed in the state in which the court sits.  In order to admit a notarized declaration, signed in Mexico, in federal court, under Federal Rule of Evidence 902, the notarized document must also be certified by an “Apostille,” a Mexican government certification that the notary is legitimate.  The Mexican Department of State (Direccion de Gobernacion, Gobierno Del Estado, Departamento de Legalizacion de Firmas) issues “Apostilles.”  Each State, in Mexico, has its own State Department.  An “Apostille” costs about 40 pesos.  The United States Embassy in Mexico City can provide addresses and more information concerning this process.

It is true that the prosecution can object, in certain post-conviction proceedings, to the admissibility of such a declaration on hearsay grounds.  Moreover, the declaration on its face shows the client’s presence in Mexico.  It does not take a rocket scientist of a prosecutor to figure the client may have difficulty making it to court.  Therefore, the prosecutor may plan to object to the declaration on hearsay grounds, confident the court will strike it since post-conviction counsel cannot offer the declarant for cross-examination.[35]

            Some types of post-conviction proceedings, however, may be conducted upon the paperwork, including hearsay declarations, without the necessity of offering live witnesses.[36]  In these proceedings, the client’s Mexican declaration would seem to be as admissible as a declaration signed in the United States, even over a hearsay objection.

            In habeas corpus proceedings, or other motion proceedings in which the court rules that live testimony is necessary, however, counsel must seek the client’s admission into the United States on a temporary nonimmigrant basis in order to testify or offer to do so to overcome the prosecution’s hearsay objection to the declaration. 

This may be accomplished with the assistance of the United States Department of State, which will seek permission of the government of the country in which the client resides.[37]  If the effort is made on the basis that the client is in effect a witness whose testimony is sought in the proceeding, it would be necessary to contact the Office of the Citizens Consular Services, Department of State, (202) 647-5225, for information concerning the mechanics of service of a subpoena or court order, and on the requirements of foreign law.  This process should be started at least three weeks prior to the court appearance at which the client’s testimony is sought, and preferably more.

            For clients in Mexico, the United States Embassy will conduct an interview with the client and decide whether or not to grant the witness a visa.  Contact Cynthia Sharp, Deputy Chief, State Department, at the U.S. Embassy in Mexico City, telephone number 9-011-52-5-209-9100 for further information.

            In criminal cases, it is possible in some states to take depositions of witnesses who are not able to be present at trial.[38]  It may be possible to use these procedures to obtain admissible prior recorded testimony of the defendant for introduction into evidence at the post-conviction hearing.  Since the conditional examination may be conducted only if a witness is about to leave the state, this procedure might be effective if used while the client is in deportation proceedings, but has not yet been deported, since s/he would then be about to leave the state and there would be no assurance s/he would be allowed to return to testify.  If the client is allowed by the State Department to re-enter temporarily to testify, the conditional examination transcript would not be admissible, but it would be available in case the client was not permitted to attend the hearing.

[35] But see People v. Superior Court (Zamudio), 23 Cal.4th 183 (2000).

[36] Ibid. (motions to vacate criminal convictions for violation of statutes such as California Penal Code § 1016.5 may be conducted, in the discretion of the court, on the paperwork).

[37] See Peterson, Procedures for Obtaining Testimony of Witnesses From Foreign Countries, 26 C.A.C.J. Forum, No. 2, p. 89 (1999).

[38] It is possible in a criminal trial to introduce testimony of a witness who was conditionally examined pursuant to California Penal Code § § 1335-1345, or an out-of-state witness who was examined on “a commission” (as defined in California Penal Code § 1351) under California Penal Code § § 1349-1362, if the witness is unavailable at trial within the meaning of California Evidence Code § 240.  See California Criminal Law Procedure and Practice § 31.20 (5th ed. 2000).