Tooby's California Post-Conviction Relief for Immigrants

 

Vacating or reducing criminal sentences is one of the most important areas of post-conviction relief for immigrants, since it is frequently possible to arrange a modest change in the judgment, and thereby confer tremendous immigration benefits upon the client. 

 

            Any effort to avoid immigration consequences of a criminal sentence by an attempt to vacate or reduce the sentence involves two stages: (1) the vacation or reduction of the sentence itself, and (2) handling the sentencing  the second time around so as to minimize the adverse immigration consequences.

 

            Different attorneys with different skills may best be able to handle these two stages.  An attorney experienced in post‑conviction relief, or better yet, the immigration aspects of post-conviction relief, is often best equipped to vacate or reduce a sentence.  Once that has been achieved, standard criminal defense tactics will often work best to minimize the adverse immigration consequences of any new sentence.  A public defender or other criminal defense attorney can help the client here, as long as s/he has a reliable source of immigration advice on what specific objectives to seek in order to avoid removal and the other adverse immigration consequences that could result from any new sentence.

 

There are four ways in which a criminal sentence can have profound immigration consequences:

 

                        The length of the overall sentence imposed can trigger immigration consequences (see A, infra);

 

                        The actual time spent in custody for one or more convictions can trigger immigration consequences (see B, infra);

 

                        The fact that the client is currently on probation or parole can trigger immigration consequences (see C, infra); and

 

                        The sentencing judgment, which forms part of the “record of conviction,” can lead to adverse immigration consequences.  See D, infra. See generally N. Tooby & JJ Rollin, Criminal Defense of Immigrants, Chapter 10 (2007)

 

This chapter will cover the specific immigration effects of the length of the formal sentence, the actual length of time passed in custody, and the length of the parole or probationary period, so counsel can determine when it is important to vacate or reduce the sentence in order to alter one or more of these three characteristics of a criminal sentence, so the client can obtain the corresponding immigration benefits.

 

The length of a sentence also offers a gauge of the seriousness of the offense, which is taken into account in many contexts in which discretionary immigration decisions are made, even where no absolute bar to relief is encountered.  Vacating or reducing the length of a sentence may be effective in reducing the negative impact of the conviction even if the conviction or sentence does not create a bar to relief.

 

            This chapter will also discuss the various forms of California post-conviction relief which can have the effect of reducing these aspects of a criminal sentence.  The following list includes most common forms of post-conviction relief capable of vacating or modifying a criminal sentence:

 

(1)  Direct appeal from the sentence (see § 8.29, infra)

 

(2)  Petition for a writ of habeas corpus (see § 8.30, infra)

 

(3)  Non-statutory motion to vacate the sentence (see § 8.31, infra)

 

(4)  Petition for a writ of coram nobis (see § 8.32, infra)

 

(5)  Motion to correct void sentence (see § 8.33, infra)

 

(6)  Suggestion that the sentencing court recall the sentence pursuant to Penal Code § 1170(d) (see § 8.34, infra)

 

(7)  Motion to modify the conditions of probation under Penal Code § x1203.03 (see § 8.36, infra)

 

Certain important immigration consequences of a conviction can be changed by means of a motion to reduce the level of the offense, from felony to misdemeanor, or from misdemeanor to infraction.  These issues are discussed in Chapter 9, infra.