Criminal Defense of Immigrants

(C)  Post-Conviction Counsel’s Role.  Post-conviction counsel has four tasks:  (1) Make a list of all criminal convictions and sentences suffered by the client, in all jurisdictions; (2) determine which of them (singly or in combination) trigger adverse immigration consequences, and what exactly those consequences are; (3) for each conviction, or combination of convictions, that produces an adverse effect, determine what alteration in the criminal conviction or sentence is necessary to produce an immigration result that can be tolerated; and (4) investigate each conviction to determine whether the necessary result can be achieved by means of post-conviction relief.

                There are two basic avenues for achieving post‑conviction relief:

                (1)  An attack on the validity of the conviction, if successful, results in vacating the conviction.  The client is then in the same position s/he occupied immediately prior to the plea or verdict of guilty, and needs to mount an effective defense to the charges a second time.  Vacation of judgment eliminates all immigration effects of all convictions,[63] including convictions of drug offenses.  See § § 11.3-11.8.  Counsel may also have success by vacating the sentence.  See § § 11.9-11.16, infra.

                (2)  In the Ninth Circuit only, expungements and state rehabilitative relief of various kinds are effective in eliminating convictions of first-offense, simple possession of any controlled substance, as well as convictions of possession of drug paraphernalia and other minor controlled substances convictions of offenses that are not prohibited under federal law, such as being under the influence of drugs or being in a place in which drugs are used.[64]

                The results of successful post‑conviction relief can include vacating the conviction, acquittal, dismissal, diversion, expungement, reduction from felony to misdemeanor or from misdemeanor to infraction, delay in conviction until a certain time period expires, etc.  A more thorough description of the variety of different forms of post‑conviction relief is provided elsewhere.[65]

                If it is feasible to vacate the problematic conviction completely by means of post-conviction relief, then that should be the strategy.  More often, however, making any change in the criminal history is difficult, so it is important to develop a strategy in which the chances of success are as great as possible.  This means that post-conviction counsel must work to obtain post-conviction relief in criminal court to eliminate as much of the immigration damage caused by criminal cases as possible.  Then, it is more realistic to hope that immigration counsel can obtain immigration relief in immigration court to achieve the more limited goals that remain.

[63] The act of committing some offenses (such as prostitution, alcohol and drug offenses) may have adverse immigration effects even if no conviction results in the criminal case.  See § § 17.23-17.30, Appendix D, infra, for a list of these conduct-based grounds of deportation, and § § 18.16-18.27, Appendix E, infra, for a complete list of all grounds of inadmissibility, many of which are based on conduct, rather than a conviction.

[64] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).  The Ninth Circuit has upheld the remainder of the Roldan decision, which limited the effectiveness of expungements in all cases, in Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).  There, the court found that an order vacating a non-drug conviction and dismissing the charge under an Arizona state rehabilitative statute did not operate to remove the immigration effects of the conviction, as was announced in Roldan, a determination that the court found was entitled to judicial deference.  The effectiveness of expungements will be limited to first-offense possession convictions and those minor drug offenses that are not prohibited by federal law.  See § § 11.17-11.20, supra.

[65] Chapter 11, infra; N. Tooby, Post-Conviction Relief for Immigrants, Chapter 5 (2004).