Criminal Defense of Immigrants

Even after conviction, it is urgent to investigate the actual immigration consequences at the earliest possible time, before deadlines expire for post-conviction relief that might offer a chance to set the matter right if there is a problem.  See Chapter 11, infra.[6]  There may be time to file a timely notice of appeal from the criminal conviction, or to start a late appeal from the judgment, which would destroy the finality of the conviction for immigration purposes until the conclusion of the appeal.  See § 7.37, infra.  There may be time to file a motion to withdraw the plea or vacate the judgment, or a petition for habeas corpus, coram nobis, or another form of post-conviction relief that would otherwise be barred by a statute of limitations.  A motion or petition for post-conviction relief filed earlier, rather than later, is less likely to be barred by an argument by the government that the immigrant did not pursue the claim with due diligence.

                A safe haven will often form a part of a claim of legal invalidity that can be used to vacate a conviction for immigration purposes, since (a) defense counsel may have rendered ineffective assistance by failing to pursue a safe haven before the plea was originally entered, or (b) the existence of a safe haven may be an important fact of which all parties were unaware, thus giving rise to a mistake of fact claim that the damaging conviction would not have come into existence if the parties had been aware of the actual immigration consequences of the conviction prior to entry of plea.  Finally, it is often much easier to obtain post-conviction relief if defense counsel can offer the prosecution an equivalent safe haven, accompanied by the same or a similar sentence, to replace the damaging conviction that must be eliminated to avert deportation.

[6] See also N. Tooby, Post-Conviction Relief for Immigrants (2004).