Criminal Defense of Immigrants


§ 11.48 ii. The Client Has Few Convictions

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The best situation is one in which the client needs to attack only one conviction.  It is frequently possible to obtain post-conviction relief, even if the client has several convictions, provided they were all received during one plea proceeding, since there is then only one plea bargain that must be set aside.


                It is much worse if the client suffered multiple convictions in different cases or courts with pleas entered on different occasions, since more than one plea-bargain must be set aside.  If the chances of vacating one plea are 1/10, the chances of vacating two independent pleas are 1/10 x 1/10 = 1/100, and the chances of vacating three are 1/1000, assuming the odds of vacating each conviction are independent of each other.[302]


                Odds are better if there is an easier “fix” for one or more of the convictions.  For example, it may be possible to avoid immigration damage if one of the convictions is insignificant and can be vacated and dismissed for that reason alone (despite the client’s other record).  Perhaps the immigration consequences of another conviction can be eliminated by an easier form of post-conviction relief, such as expungement or a motion to reduce a felony to a misdemeanor.  Then only one conviction remains against which a full-scale assault must be mounted.  Under these circumstances, it might be only slightly more difficult to set aside the final conviction than if only one conviction must be vacated.

[302] They may, in fact, be linked under certain circumstances.  For example, if conviction number I is legally invalid, perhaps defense counsel in case number II rendered ineffective assistance in failing to vacate conviction I previously so it would not serve as a prior conviction to enhance the sentence on case number II, thus giving a ground of legal invalidity for case number II as well.