Tooby's California Post-Conviction Relief for Immigrants

(A)

In General.  In any given case, it may be impossible, or nearly so, to obtain a criminal disposition that will guarantee that a noncitizen client will not be subject to removal at all.  In many cases, the goal in criminal court will be to prevent the conviction from barring relief in immigration court.  Then the client can be ordered removed, but the immigration court can still order that s/he not be removed by granting some form of relief from removal.  The requirements for the various forms of relief can be extremely complex, and criminal defense counsel will need to work with immigration counsel to determine the noncitizen’s immigration status and potential eligibility for (and chances of receiving) some type of relief.[45]  An aggravated felony is generally a complete bar to relief in immigration court, although there are some exceptions.[46]  A noncitizen subject to inadmissibility will be barred from relief for controlled substances convictions except a single conviction for simple possession of less than 30 grams of marijuana.

[45] Immigration counsel should also be aware of potential changes in the laws or regulations, since such changes may suddenly bar a noncitizen who was previously eligible, even where the application has already been made.  See, e.g., Matter of Pineda, 21 I. & N. Dec. 1017 (BIA 1997) (applying amendment to INA § 212(h) to disqualify applicant who was eligible when request was filed); Matter of Yeung, 21 I. & N. Dec. 610 (BIA 1996)(applying amendment to INA § 212(h) waiver to waiver applicant); Matter of Soriano, 21 I. & N. Dec. 516 (BIA 1996) (applying amendment to INA § 212(c) to applicant who was eligible when he first applied).

[46] See, e.g., Criminal Defense of Immigrants § § 24.7, 24.28, 24.29, 24.31.