Criminal Defense of Immigrants

 

(A)  In General.  As Congress slams shut the doors of the immigration courts against more and more immigrants with criminal convictions, it becomes increasingly important to consider erasing those convictions in their entirety at the source: in criminal court.  The substantive and procedural law governing post-conviction relief in various jurisdictions is the subject of a lengthy literature.[284]

 

                The effort to vacate a conviction is directed at several specific situations:

 

                1.             The client received a perfunctory defense since s/he had not been told of the disastrous immigration consequences attendant upon the conviction, and was unaware of the true stakes at play.

 

                2.             The client now wishes to and can devote considerably more resources to the case than during the original defense.

 

                3.             As a result of a better defense, a way may be found to defend the case (the client is “innocent”), or mitigate the case (a better plea bargain or sentence to an immigration-harmless disposition).  In other words, it is possible to imagine a better result for the client the second time around as a result of the more vigorous, better-informed defense.

 

                4.  There are some cases in which the client is in fact guilty but has such powerful equities that a prosecutor or judge may be motivated to adjust the outcome of the case to avoid harsh immigration consequences.  In these cases, filing an attack on the conviction — even though it is not very strong — may suffice to bring the case before decisionmakers who can exercise compassionate discretion.[285]

 

                Technical defenses or objections to the validity of a conviction often face very strong opposition in conservative criminal courts these days, unless they are enlivened by genuine claims of unfairness, innocence, or very powerful equities.

 

As described in § § 11.3-11.8, supra, vacating the conviction[286] in its entirety on a ground of legal invalidity — by direct appeal, habeas corpus, coram nobis, motion to withdraw the plea or vacate the conviction, or the like — will eliminate any adverse immigration consequences (along with all other consequences) flowing from the conviction.[287]  When a judgment is vacated, the conviction is eliminated ab initio as having been illegal from the time it was imposed.[288] 

 

                Since the result of the order vacating the conviction is to eliminate the conviction completely, for all purposes, there is no conviction to be held against the defendant for immigration purposes.[289]  Thus, the conviction is eliminated generally and may not be used as a basis for deportation, exclusion, statutory ineligibility to show Good Moral Character, or any other immigration purpose.

 

                When this occurs, it is important (a) to obtain a certified copy of the order vacating the conviction, since the immigration courts often require certified copies, and (b) to correct the state and federal criminal history records to reflect that the conviction has been vacated.

 

This chapter will briefly cover the various procedural vehicles available by which a client may obtain post-conviction relief from a criminal conviction.[290]  It will discuss federal and state forms of post-conviction relief.  Foreign forms of post-conviction relief are beyond the scope of this chapter, although their immigration effect may be assessed under the same standards as domestic post-conviction relief.[291] 

 

[284] For example, see J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure (4th ed. 2002); L. Yackle, Postconviction Remedies (2003); I. Robbins, Habeas Corpus Checklists (published annually); N. Tooby, California Post-Conviction Relief (2002) (California law); D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (2007), Chap. 4.

[285] It is urgent to make sure the conviction is vacated on a ground of legal invalidity, as opposed to an equitable ground, to ensure the immigration authorities honor the vacatur.

[286] Congress recently redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA), § 322 (effective September 30, 1996), amending INA, Pub. L. No. 82-414, 66 Stat. 163, § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[287] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled alien to reopen deportation proceeding even after deportation); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport alien whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of alien based on invalid conviction could not be considered “lawfully executed”); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).

[288] “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes § 4.2(a), p. 4-4 (1999), citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[289] Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); see also Matter of O, 7 I. & N. Dec. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. Dec. 677, 680 (BIA 1979).

[290] See § § 11.69, 11.72, infra.

[291] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).