Criminal Defense of Immigrants


§ 2.21 F. Post-Conviction Relief May be Impossible, Prohibitively Expensive, or Too Slow

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It is possible, in some cases, to seek post-conviction relief in the criminal courts, set aside the deportable conviction or sentence, negotiate or litigate a non-deportable result, and submit this new information to the immigration courts in an effort to reopen and cancel the deportation order.[9]


                The difficulties with this approach, however, are often insurmountable.  The client may be in mandatory detention, disabled from taking effective action by lack of funds, or lack of ability to communicate, or lack of information.  In many cases, it is extremely difficult or impossible to obtain post-conviction relief.  It can take many months or even longer to obtain post-conviction relief, which may therefore come too late to prevent deportation.  The immigration courts may refuse to reopen proceedings to accept the new evidence that the deportable conviction has ceased to exist.  The expense of post-conviction relief may be too much for the client and the client’s family.  It is often impossible to rectify the situation once a deportable plea has been entered, or a deportable sentence has been imposed.


[9] See N. Tooby, Post-Conviction Relief for Immigrants (National Edition, 2004); N. Tooby, California Post-Conviction Relief for Immigrants (2002).