Criminal Defense of Immigrants


§ 11.34 a. Matching the Vehicle to the Immigration Effect

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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).