§ 5.38 (A)
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(A) In General. Many immigration and criminal counsel assume that it is difficult or impossible to vacate criminal convictions or sentences. On the contrary, because of the mass-production manner in which busy urban courts operate, the scarcity of resources of public defenders’ offices that handle over 80% of the criminal caseload, and special handicaps that innocent immigrants face when encountering the criminal justice system, many criminal convictions exhibit mistakes either in substance or in procedure. Minor errors are often sufficient to reopen the case, especially if the clients’ equities are strong. If the error is major, it may be possible to force open a conviction that resulted in a five-year prison sentence. While much depends on the individual case, success in eliminating the adverse immigration consequences of a criminal conviction can be achieved in a surprising number of cases.
Chapter 11 describes the various practical factors to consider when determining the chances of success in reopening a conviction or sentence in a criminal case, for the purpose of ameliorating adverse immigration consequences. For a checklist of these factors, see Appendix F, infra. A full-scale investigation and consultation with an expert can be costly, so it is very useful to have an idea, before incurring that expense, of whether the chances of success are reasonably high in a given case. See § § 11.32-11.67, infra.
Often, this determination can be made on the basis of a brief investigation of the case and consultation with the client, without having to obtain and review all the documents and transcripts from the criminal case. This chapter will give counsel a rough idea of the chances of success on the basis of a brief investigation and client interview, so as to make an intelligent decision whether the case warrants a full-scale investigation.