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

§ 11.34 a. Matching the Vehicle to the Immigration Effect

For more text, click "Next Page>"

Counsel must first determine what change in the criminal history is needed in order to avoid or ameliorate the adverse immigration effect to which the client is subject. For example, if the conviction is triggering deportation, counsel must choose a vehicle capable of vacating the conviction on a ground of legal invalidity. If the sentence imposed is transforming a crime of violence into an aggravated felony, counsel must find a vehicle capable of vacating or reducing the sentence. If the conviction is a felony and thus falls within the ambit of 18 U.S.C. § 16(b), creating a crime of violence aggravated felony, then a motion to reduce a felony to a misdemeanor may be sufficient to avert the immigration damage. If time is needed to assess the situation, it may be possible to file a direct appeal from the conviction, in order to avoid a “final” conviction and thus obtain the client’s release from mandatory immigration detention and buy time to plan a more durable strategy.

The mere filing of a request for post-conviction relief, other than a direct appeal of right, does not destroy the finality of the conviction[292] or disable the immigration authorities from initiating removal proceedings.

[292] Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction was affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975).