Criminal Defense of Immigrants


§ 10.15 (C)

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(C)  Post-Conviction Relief.  Certain proceedings at sentence may prevent the current offense from resulting in conviction, by means of various types of post-conviction relief.


                (1)  Motion to Withdraw Plea.  Counsel can move at or prior to sentence to withdraw the plea of guilty or no contest in the current case.  If successful, the current case will not (or, at least, not yet) result in a conviction.  See § 10.35(A), infra.


                (2)  Sentence to Qualify for Post-Conviction Relief.  Certain sentences may enable the client to qualify for post-conviction relief that will later eliminate the conviction for immigration purposes.  See § 10.22, infra.  For example, obtaining a sentence to probation, as opposed to prison, may enable the client in some states to qualify for state rehabilitative relief which will be effective in the Ninth Circuit in eliminating a conviction of first-offense simple possession of a controlled substance for immigration purposes.  See § § 11.17, ff., infra.


                (3)  Direct Appeal.  Counsel can file a direct appeal from judgment and sentence, which will have the effect of eliminating the finality of the conviction, in most circuits, and thus preventing immigration authorities from beginning removal proceedings on the basis of the conviction which has not yet become final.  See § 7.37, supra.