Criminal Defense of Immigrants


§ 6.50 (B)

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(B)  Client Has Illegally Returned to United States.  It is very dangerous for a client who has been deported, especially after a criminal conviction, to illegally re-enter the United States.  See § 6.31, supra.[249]  If such a person appears in a state post-conviction proceeding, especially where issues regarding the immigration consequences of a criminal conviction are raised, there is a grave risk that the prosecution will become aware of the client’s immigration status, as well as the criminal history, and conclude that the client has committed a serious federal felony: illegal re-entry after deportation.  If the prosecution makes a simple phone call to the immigration authorities, at the next court appearance, the client may find s/he is under federal arrest and charged in United States District Court with illegal re-entry after deportation.


It is even problematic to obtain a declaration from a client under these circumstances.  The declaration, at the foot, swears that the client signed the declaration on a certain date, at a certain place.  If that date is after the client’s deportation, and if the place is within the United States, the declaration on its face establishes that the client illegally re-entered the United States, and could provide powerful evidence that the client has committed a serious federal felony.


It is better to recommend that such a client return to his or her home country, from where (a) post-conviction counsel can obtain a notarized declaration under penalty of perjury for use in the post-conviction proceeding, and (b) immigration counsel can seek to parole the client into the United States temporarily on a non-immigrant basis as indicated in the preceding subsection.


[249] See INA § 276, 8 U.S.C. § 1326, concerning the federal criminal penalties for illegal re-entry after deportation.




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.