Criminal Defense of Immigrants
Chapter
- §11.1 I. Introduction
- §11.2 II. Summary: What Criminal Counsel Need to Know
- §11.3 III. Effective Orders Vacating Conviction
- §11.4 A. General Rule
- §11.5 B. Full Faith and Credit
- §11.6 C. Burden of Proof
- §11.7 D. Increasing the Chances Immigration Authorities Will Respect the Order
- §11.8 E. Jurisdiction to Vacate
- §11.9 IV. Effective Orders Modifying Sentence
- §11.10 A. Most Recent Sentence Governs
- §11.11 B. New Definition of "Conviction"
- §11.12 C. Reducing Sentence
- §11.13 D. Reduction of Felony to Misdemeanor
- §11.14 1. Immigration Consequences
- §11.15 2. Procedure
- §11.16 E. Reduction of Misdemeanor to Infraction
- §11.17 V. Effective Rehabilitative Relief
- §11.18 A. General Rule
- §11.19 B. Federal First Offender Act Exception
- §11.20 C. Ninth Circuit Exception for State and Foreign Rehabilitative Relief Analogous to FFOA
- §11.21 D. Judicial Recommendation Against Deportation
- §11.22 E. Pardon
- §11.23 1. Determination of Whether a Pardon Exists
- §11.24 2. Foreign Pardons
- §11.25 VI. Procedure to Obtain Post-Conviction Relief
- §11.26 A. Finding Post-Conviction Counsel
- §11.27 B. Investigating the Case
- §11.28 C. Developing a Strategy
- §11.29 1. Adverse Consequences of Post-Conviction Relief
- §11.30 2. Ex Post Facto Doctrine
- §11.31 3. Conduct-Based Immigration Consequences
- §11.32 D. Evaluating the Case
- §11.33 1. Requirements for Successful Post-Conviction Relief
- §11.34 a. Matching the Vehicle to the Immigration Effect
- §11.35 b. Matching the Vehicle to the Ground of Legal Invalidity
- §11.36 c. Choosing a Vehicle that Works
- §11.37 d. Timing of Post-Conviction Relief
- §11.38 2. Factors to Consider
- §11.39 a. The Current Status of the Client
- §11.40 i. The Client is Clean and Sober
- §11.41 ii. The Client Has Strong Equities
- §11.42 iii. The Client is Out of Custody
- §11.43 iv. The Client Has No Outstanding or Potential Arrest Warrants
- §11.44 v. The Client Has No Current Aggravated Re-entry Exposure
- §11.45 vi. The Client is Lawfully Present
- §11.46 b. The Criminal Situation
- §11.47 i. A Small Criminal Case Has Large Immigration Effects
- §11.48 ii. The Client Has Few Convictions
- §11.49 iii. Number and Diversity of Original Charges
- §11.50 iv. The Evidence of Guilt is Weak, or the Client Has a Plausible Claim of (at Least Partial) Innocence
- §11.51 v. The Client Was Charged Jointly With 1 or More Codefendants
- §11.52 vi. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem
- §11.53 vii. There is Small Risk the Client Will Receive Additional Time in Custody
- §11.54 (a. Adverse Criminal Consequences
- §11.55 (b. Adverse Immigration Consequences
- §11.56 viii. The Jurisdiction Where the Conviction Occurred is Relatively Sympathetic
- §11.57 ix. Incomplete Initial Defense Investigation
- §11.58 x. Technical Problems with Prosecution Case
- §11.59 c. Timing of the Case
- §11.60 i. Federal Time Limits
- §11.61 (a. Motion to Vacate Sentence Under § 2255
- §11.62 (b. Coram Nobis Time Limits
- §11.63 (c. Attacking State Convictions
- §11.64 ii. Time Limits Within Which Actions for State Post-Conviction Relief Must be Filed
- §11.65 d. The Client Has 6 Months or More Before Irrevocable Immigration Damage Occurs
- §11.66 e. There is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated
- §11.67 f. The Records Necessary to Establish Error in the Criminal Case Still Exist
- §11.68 VII. Vacating Convictions
- §11.69 A. Vehicles
- §11.70 B. Grounds
- §11.71 VIII. Modifying Sentences
- §11.72 A. Vehicles
- §11.73 B. Grounds
- §11.74 IX. After Obtaining Post-Conviction Relief
- §11.75 A. Defending the Criminal Case Again
- §11.76 1. Some Safer Alternative Dispositions
- §11.77 2. Plea Negotiations
- §11.78 B. Documenting the Victory
- §11.79 1. Obtaining Certified Copies
- §11.80 2. Correcting Criminal History Records
- §11.81 C. Reopening Removal Proceedings
- §11.82 1. Before Deportation Has Occurred
- §11.83 2. After Deportation Has Occurred
- §11.84 3. Collateral Attack of Deportation Order Upon Prosecution for Illegal Re-entry
- §11.85 X. Other Resources
§ 11.16 E. Reduction of Misdemeanor to Infraction
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A reduction of a felony to a misdemeanor can be regarded as a post-conviction order modifying sentence. As such, the most recent sentence (i.e., the reduced level of the offense), is binding on the immigration courts. See § 11.10, supra. An infraction is not considered under immigration law to be a misdemeanor, because there is no jail sentence possible for the offense. It is also not considered to be a conviction for a “crime,” and therefore cannot trigger conviction-based immigration consequences. See § 7.24, supra.
