Tooby's California Post-Conviction Relief for Immigrants

The procedure for obtaining post‑conviction relief is generally similar to criminal motion practice.[25]  This requires developing the proof that the client is entitled to the relief sought, in the form of certified copies of court records, reporter’s transcripts, and declarations under penalty of perjury from all witnesses, often including client, original counsel, and immigration counsel.

            Usually the claim for relief will be made in the court which originally handed down the conviction.  Obtain a court date on the criminal law and motion calendar, or a date before the judge who rendered the conviction, file the moving papers with the court, and serve them on the prosecution at least two weeks in advance.  Consult local practice and the rules of court concerning procedure.

            The prosecution and court will often be relatively unfamiliar with the procedural vehicle or grounds presented.  It is therefore important to package the request for relief in as palatable a way as possible, along the following lines:

(1) The case is long over, and the client has served the term and paid the penalty for the offense.

(2) The client is now threatened with extreme immigration consequences over and above the penalties that would be imposed upon a citizen in identical circumstances.

(3) All the equities of the client’s spouse, family, good record, and the like indicate that the immigration consequences are unduly harsh and unnecessary.

(4) The client is merely seeking, e.g., vacating the old conviction and dismissing the charge in the interests of justice.

(5) The conviction must be vacated in any event because of legal invalidity, e.g., the plea was invalid since the client was not informed of its immigration consequences.[26]

It is necessary for the moving papers (motion to vacate, or petition for extraordinary relief) to claim that the conviction or sentence is legally invalid, rather than asking that the conviction be vacated for compassionate or discretionary reasons, such as solely to avoid the immigration consequences, since the immigration authorities may not accept the latter,[27] but must accept an order vacating an invalid conviction as sufficient to eliminate that conviction for immigration purposes.[28]

[25] Habeas corpus has special procedural rules.  See Chapter 6, infra.

[26] See In re Resendiz (2001) 25 Cal.4th 230 (affirmative misadvice concerning immigration consequences can constitute deficient performance for purposes of ineffective assistance of counsel claim); People v. Soriano (1987) 194 Cal.App.3d 1470.  See Chapter 7, infra.

[27]   Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

[28]  Ibid.; 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 Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd, 465 F.3d 263 (6th Cir. 2006); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).