Criminal Defense of Immigrants

(B)  Specific Tactics.  The following are possible tactics for counsel to consider.  This list is meant to be suggestive, not exhaustive.  Other possibilities will no doubt appear depending upon the client’s exact immigration and criminal situation, and the laws of the particular jurisdiction.

                (1)  State Rehabilitative Relief.  While state rehabilitative relief is rarely effective to reduce or eliminate adverse immigration conseqences, [74] it does work to eliminate certain minor, first-offense controlled substances and similar aggravated felony convictions in the Ninth Circuit.  See § § 11.19-11.20, infra.  Counsel could request that the trial court place the client on felony probation for a period of time, and then, after successful completion of probation, expunge the conviction pursuant to a state rehabilitative statute such as California Penal Code § x1203.4.  In addition to eliminating the conviction itself, state rehabilitative relief can also be considered, by immigration authorities, to reduce the seriousness of a conviction when it is considered in immigration discretionary decisionmaking.

                (2)  Reduction from Felony to Misdemeanor.  Counsel could request a judgment (without probation) imposing a sentence of one year or less, making a conviction of an alternative felony‑misdemeanor (“wobbler”) into a misdemeanor by operation of law under statutes such as California Penal Code § 17(b)(1).  See § § 11.13-11.15, infra.  Counsel could also request that the client be placed on felony probation for a period of time, after which the offense could be reduced to a misdemeanor upon the successful completion of probation pursuant to a state statute such as California Penal Code § 17(b)(3).

                This would prevent the felony from barring eligibility for amnesty, Family Unity or TPS, and would prevent the conviction, if it is a first-offense simple possession conviction, from being considered an aggravated felony in the event the defendant later illegally re-enters the country after deportation.  See § 10.88, infra.[75]

[74] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999); but see Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (state rehabilitative relief eliminates first conviction of simple possession of controlled substances).

[75] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).