Criminal Defense of Immigrants


§ 6.50 (A)

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(A)  Client Resides Abroad.  If the client has already been deported, it is somewhat more difficult to arrange for his or her presence in court.  The United States Attorney General has statutory authority to parole a noncitizen into the United States on a temporary, nonimmigrant basis.[248]  This provision is routinely used by prosecutors who seek temporary admission of noncitizens to serve as witnesses in criminal cases, but there is no reason why it should not be made available temporarily to admit a noncitizen petitioner in a post-conviction proceeding who wishes to attend and testify at his or her hearing.  For a discussion of reopening removal proceedings on behalf of clients who were first deported, and then vacated the predicate conviction, see N. Tooby, Post-Conviction Relief for Immigrants § § 10.15 et seq. (2004).

[248] INA § § 212(d)(1), (d)(3)(B), 8 U.S.C. § § 1182(d)(1), (d)(3)(B).




There is generally no requirement that a defendant be within the United States for the criminal court to adjudicate a motion to vacate a conviction. The defendant, however, must generally be present at a new felony plea (after the conviction has been vacated), although the court often has discretion to proceed without the defendant. See, e.g., California Penal Code 977. Immigration counsel can try to get the defendant paroled into the United States to attend the post-conviction hearing. Post-conviction hearings are often conducted without the presence of the defendant unless the defendant's presence is required for an evidentiary hearing. Very often no evidentiary hearing is held because the facts are not in dispute and it is a legal issue. Some states allow the court to decide a motion on declarations without an evidentiary hearing, even if the People request to cross-examine the moving party. See, e.g., People v. Superior Court (Zamudio), 23 Cal.4th 183, 999 P.2d 686 (2000). That is no guarantee that the judge would not require the client to testify.