Criminal Defense of Immigrants
§ 11.58 x. Technical Problems with Prosecution Case
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Technical problems with the prosecution case are valuable for post-conviction relief because they are grounds on which to force the conviction open. A detailed look at this factor would require consultation with a criminal law expert, but perhaps some technical problems would be revealed through consultation with the client. For example:
An informant was a material witness on guilt or innocence;
The police committed an illegal search or seizure;
There was a lengthy delay between offense and arrest.
The nature of, and authority relating to, some of the most common grounds for reopening criminal convictions is described in § 11.70, infra. Some grounds are stronger than others. If the grounds to reopen the case are powerful, the conviction may be forced open even against heavy prosecutorial opposition. On the other hand, if the equities are strong, and other favorable factors listed in this chapter are present, many convictions can be reopened even if the technical grounds of invalidity are not powerful.
It is essential, however, to vacate the conviction on some ground of legal invalidity in order to ensure that the immigration authorities will honor the order vacating the conviction. Well-established federal law dictates that if a conviction is vacated as unlawful under habeas corpus or coram nobis, it is void and cannot be used to establish a noncitizen’s deportability or excludability. If the conviction is vacated on purely humanitarian grounds, or solely to avoid the immigration consequences, the immigration authorities will not accept the court order as eliminating the conviction for immigration purposes. Similarly, if the order removing the conviction is entered under a “state rehabilitative statute,” the immigration authorities will generally not accept it as eliminating the conviction for immigration purposes. See § § 11.3-11.8, supra.
 United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).
 See Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998). Counsel must “identify [a] new defense or legal defect in the criminal proceedings” (in contrast to the situation in Beltran). (Ibid.) The petitioner must “request that the conviction be set aside solely in order to prevent deportation . . . .” (Ibid. [emphasis supplied].) And the normal order granting the petition for a writ of habeas corpus or coram nobis, or the motion to vacate, will therefore be effective to “remove the legal basis of [the] conviction for purposes of application of federal [immigration] law.” (Ibid.)