Criminal Defense of Immigrants

(A)  Context in Which the Need for Post-Conviction Assistance Arises.  A client may present the need for post-conviction relief in several contexts:

                (1)  New Criminal Arrest.  A new arrest discloses prior convictions that must be vacated.  For example, the client is arrested on a new offense.  The client in criminal custody may have an immigration hold lodged against him or her, before or after conviction.  In investigating the case, criminal defense counsel discovers that the client has prior convictions.  In assessing the immigration consequences of the client’s entire criminal history, it appears that prior convictions are triggering immigration consequences, and post-conviction relief is necessary to eliminate or ameliorate their immigration consequences.

                (2)  Immigration Consequences.  The emergence of immigration consequences discloses one or more prior convictions that must be vacated.  Even if the client does not face a fresh criminal prosecution, adverse action by federal immigration authorities may disclose the need to vacate prior criminal convictions in order to eliminate their adverse immigration consequences.  For example, the client may travel abroad, and be placed in deferred inspection upon return to the United States since a prior criminal conviction appears to trigger a ground of inadmissibility.  The client may appear in the offices of the DHS seeking to renew a green card or attend a naturalization interview, and immigration authorities may arrest him or her and initiate removal proceedings.  The DHS may even seek the client out in the community, arrest the client for being removable on criminal grounds, and initiate removal proceedings.  Currently, this is happening most frequently with respect to immigrants who have convictions involving sexual abuse of a minor, under a DHS program called, “Operation Predator.”  The client or immigration counsel may then contact criminal counsel seeking assistance with post-conviction relief to eliminate a crime-related ground of removal.

                (3)  Assistance As A Witness to a Prior Case in Which Criminal Counsel Represented the Client.  The client, or successor counsel, may contact criminal counsel wishing counsel’s assistance as a witness to the handling of a prior criminal case in which counsel represented the client.