Criminal Defense of Immigrants


§ 11.74 IX. After Obtaining Post-Conviction Relief

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This discussion will assume that the troublesome conviction or sentence has been successfully vacated.  When this occurs, the client is left in the same situation s/he occupied immediately prior to the original plea or sentence that was causing immigration problems.  Technically, the case must be defended all over again, this time with accurate knowledge of the actual immigration consequences of the different potential dispositions.  See § 11.75, infra.  It is important to discover a safe alternative disposition to offer to the prosecution in lieu of the damaging disposition from which post-conviction relief is sought.  See § 11.76, infra.  This is a very broad topic.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).  Some suggestions are also made concerning plea negotiations in the context of efforts to obtain post-conviction relief.  See § 11.77, infra.  The broader topic of plea negotiations on behalf of immigrants is covered at Chapter 8, supra.


The victory in obtaining post-conviction relief must be documented.  See § 11.78, infra.  Certified copies of the vacatur and new conviction documents must be obtained.  See § 11.79, infra.  Counsel may also seek now to correct the state and federal criminal history records of the client to reflect the new reality.  See § 11.80, infra.


                Finally, the new conviction records may be used to reopen removal or other immigration proceedings, to obtain immigration or federal court orders eliminating the adverse immigration consequences of the former conviction and sentence.  See § § 11.81, et seq., infra.