Post-Conviction Relief for Immigrants

After vacating the conviction or sentence, the first step is to obtain multiple copies of the court order, since the immigration courts often require certified copies,[1] and state and federal criminal history agencies may as well.  This is best done on the spot.  When the court indicates it will grant post-conviction relief, counsel should take out the Order Vacating Conviction already prepared in advance, which is sufficient to force the immigration authorities to ignore the conviction under the appropriate legal standards, show it to the prosecution, and ask the court to sign it in open court.  Counsel should then take the signed original order to the clerk, in court, and ask him or her for three certified copies.  Counsel should give one to the client, keep one in counsel’s file for possible future need, and send the third to the client’s immigration lawyer, so it can be presented to the immigration authorities or courts as proof that the conviction has been legally eliminated for immigration purposes.

If it is not possible to obtain the certified copies in court, counsel can attempt to persuade the clerk to trust counsel with the court file, so counsel can take it to the clerk’s office and obtain the certified copies.  Failing that, counsel can discover when the file will reach the clerk’s office, and visit it to obtain the certified copies in person if possible.  As a last resort, if there is sufficient time, counsel can obtain them by mail after the file has reached the clerk’s office.

            If the case has been finally resolved by a new disposition or dismissal during the same hearing in which the original conviction or sentence was vacated, it is important to obtain certified copies of the clerk’s minutes, probation order, and other documentation of the final resolution of the case, so immigration counsel can reassure the immigration authorities that the final outcome does not trigger the adverse immigration consequences of the original disposition.  It is also wise to order a copy of the reporter’s transcript of the hearing as well, for the same reasons.

[1] The immigration authorities apparently believe post-conviction counsel are capable of forging mere “file-stamped” copies, but incapable of forging “certified” copies of court orders.