The challenge now, after vacating the original conviction or sentence, is to achieve a new outcome of the criminal case through standard criminal defense techniques that the client can live with from an immigration standpoint as well as a criminal standpoint.  Counsel must do whatever research or consultation is required in order to obtain an exact understanding of which of the possible criminal outcomes have acceptable immigration consequences. 

 

            This task is little different from that of mounting an original criminal defense in light of the exact immigration consequences threatened by the different potential dispositions of the case.  Considerable literature is available to assist counsel in this effort.[14]

            The basic approach to defending a criminal case, so as to take immigration consequences fully into account, is quite simple:

 

(1)  Obtain exact information on the client’s immigration situation;

 

(2)  Consult an immigration expert (or do sufficient research) to determine realistic criminal defense goals that can minimize immigration consequences;

 

(3)  Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals;

 

(4)  Formulate a strategy that gives appropriate weight to the need to minimize adverse immigration consequences, in light of the other consequences of the criminal case and the desires of the client; and

 

(5)  Continue to consult with an immigration attorney since additional immigration questions frequently arise during the course of the case.

[14] E.g., N. Tooby & K. Brady, Criminal Defense of Immigrants (3d ed. 2003); K. Brady, et al., California Criminal Law and Immigration (Immigration Legal Resource Center 2002); D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (West Group 2003); K. Brady & N. Tooby, How to Protect Defendants from Immigration Consequences, 24 California Attorneys For Criminal Justice Forum, No. 3, 42 (August, 1997); K. Brady, D. Keener, & N. Tooby, Representing the Noncitizen Criminal Defendant, Chap. 48 in California Continuing Education of the Bar, California Criminal Law: Procedure And Practice (7th ed. 2004).

First Circuit

POST CON - NUNC PRO TUNC ORDERS
The government will not necessarily accept nunc pro tunc orders as issued on the nunc pro tunc date. E.g., Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (nunc pro tunc order that granted custody to Fierro's father retroactively did not satisfy the custody requirement for automatic citizenship under 8 U.S.C. 1432(a)); Matter of Cariaga, 15 I & N Dec. 716 (1976) (no "retroactive" adoptions for adjustment purposes).  But see Allen v. Brown, 953 F. Supp. 199 (N.D. Ohio 1997) (distinguishing "retroactive" adoptions from "nunc pro tunc" adoptions). Therefore, vacating a conviction, and entering a new plea "nunc pro tunc" will not necessarily be accepted by the immigration authorities or courts as occurring on the nunc pro tunc date.

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).