Criminal Defense of Immigrants

(B)  A Triage Guide to Post-Conviction Cases.  Before beginning the more costly process of trying to eliminate conviction, it is important to give clients an accurate idea of the costs and chances of successfully vacating a criminal conviction.  Equally important is avoiding giving a client false hope.  Sometimes the greatest service counsel can offer is to tell the client it is hopeless and recommend s/he avoid the expenses and agonies of a doomed effort to vacate a criminal conviction.  Sometimes, the fruits of victory are so important to the client that s/he is willing to spend a great deal of time and money in an effort to clear away a prior criminal conviction or sentence, even if there is only a small chance of success.  Regardless, the client should be fully educated as to the costs of the attempt and the chances of success.

                Some clients are willing to try to eliminate the conviction even if the chances of success are slim.  An accountant put it this way:  Suppose the client can earn an average of $30,000 per year here in the United States and only $3,000 per year if deported to Mexico.  If the client has 37 years remaining in his or her working life, the difference in earnings is $1 million.  This calculation ignores compounding the income and salary increases, as well as the intangible benefits of avoiding destruction of the family, severing relationships with friends, family, and all that the client loves about living in the United States.  Since staying here is a benefit worth $1 million, some clients feel it is worth trying to vacate a conviction even if there is only a five percent chance of succeeding.

                On the other hand, if the effort is doomed, the cost of attempting to vacate the conviction represents real wealth in the native land; it may be enough to purchase a business and to survive for several years at least, even if the client initially has no income in the new country.  Under these circumstances, the better choice is to avoid wasting the funds in a hopeless cause.

                The issues are often not black-and-white.  Cases can range anywhere on a spectrum for each factor.  Obviously, if a case is at the favorable end of the spectrum for each factor, it is a very promising case indeed.  Conversely, even one important negative factor can be sufficient to mark a case as hopeless.  For example, if the client has ten different deportable convictions each entered in a different plea proceeding, the case is hopeless regardless of other factors.

                The factors listed here are not exhaustive.  They have been selected because of their importance and because it is often possible for counsel to determine whether they exist even before conducting an extensive review of the case.  After examining each factor and noting its presence, absence, and degree, it is useful to place this information on one page to take an overall look at the case.  For easy reference, the factors are briefly listed in checklist form in Appendix 1: Post-Conviction Evaluation Checklist.