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

§ 11.73 (B)

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(B) Ineffective Assistance of Counsel for failure to investigate the mitigating facts of what will happen to the defendant’s poor innocent family when he is deported, and for failure to use those mitigating facts to attempt to persuade the court to give a shorter sentence.[430]

[430] Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994) (counsel spent only seven hours investigating the case, ignored a potentially fruitful lead that would have created substantial questions concerning the identity of the perpetrator, and failed to investigate defendant’s mental competence to enter the plea); Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995), cert. denied, 516 U.S. 946 (1995) (failure to obtain school and hospital records which would have lead to evidence of psychiatric problems); Jackson v. Herring, 42 F.1350 (11th Cir. 1995), cert. denied, 515 U.S. 1189 (1995); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), cert. denied, 513 U.S. 1102 (1995); Glover v. United States, 531 U.S. 198, 205, 121 S.Ct. 696 (2001) (a reasonable probability defendant would have received a sentence even one day shorter in length is sufficient to establish prejudice from ineffective assistance of counsel at sentencing). See also United States v. Leonti, 326 F.3d 1111 (9th Cir. Apr. 24, 2003) (ineffective assistance at sentencing when counsel failed effectively to assist defendant to cooperate).