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

§ 11.23 (A)

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(A) Label of Document. The name of the document may not always determine whether the DHS will regard it as a pardon. A document called an “amnesty” may be accepted by the DHS as equivalent to a pardon.[256] Commutations of sentence or release on parole are not regarded as “pardons.”[257] An order restoring civil rights may be considered equivalent to a pardon, for immigration purposes, if it satisfies all the requirements of a pardon: a grant by the governor unconditionally removing all disabilities.[258] After a 1947 amendment of Wisconsin law, a Wisconsin restoration of civil rights is no longer regarded as equivalent to a full and unconditional pardon for immigration purposes.[259]

[256] Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Matter of Adamo, 10 I. & N. Dec. 593 (BIA 1964); Matter of B, 7 I. & N. Dec. 166 (BIA 1956).

[257] Brazier v. Commissioner, 5 F.2d 162 (1924).

[258] Matter of S, 5 I. & N. Dec. 10 (INS Central Office 1952, BIA 1953) (Washington); Matter of G, 4 I. & N. Dec. 73 (BIA 1950) (Wisconsin). Cf. Matter of O, 3 I. & N. Dec. 209 (BIA 1948, AG 1950) (Nebraska and Illinois).

[259] Matter of R, 8 I. & N. Dec. 677 (BIA 1960).