Criminal Defense of Immigrants

(A)  Basic Checklist.  The analysis requires four tasks: 

a.             make a list of all criminal convictions and sentences suffered by the client — in all jurisdictions;

b.             determine which of them (singly or in combination) trigger adverse immigration consequences;

c.             for each conviction, or combination of convictions, that produces an adverse effect, determine what alteration in the criminal conviction or sentence is necessary to produce an immigration result that can be tolerated; and

d.             investigate each conviction to determine whether the necessary result can be achieved.

There are two basic avenues for achieving post‑conviction relief:

a.             An attack on the validity of the conviction which, if successful, results in vacating the conviction.  The client is then in the same position s/he occupied immediately prior to the plea or verdict of guilty and thus needs to mount an effective defense to the charges a second time.  Vacation of judgment eliminates the all immigration effects of all convictions,[271]  including convictions of drug offenses.

b.             Various procedures, such as expungements, that accept the validity of the conviction, but seek to alter it to remove some or all of the adverse immigration consequences.  Expungements, dismissals, and even orders vacating convictions that are entered pursuant to state rehabilitative statutes, are generally ineffective in eliminating convictions for immigration purposes,[272] although they may lessen the negative impact of a conviction in a discretionary decision-making context.

                The results of successful post‑conviction relief can include vacating the conviction, acquittal, dismissal, reduction from felony to misdemeanor or from misdemeanor to infraction, delay in finality of the conviction until a certain time period expires, etc.

[271] Remember that the act of committing some offenses (such as prostitution, alcohol, and drug offenses) may have adverse immigration effects even if no conviction results in the criminal case.  See § § 17.23, 18.16, infra.

[272] See § § 11.17-11.24, supra.