Tooby's California Post-Conviction Relief for Immigrants
- §8.1 I. Introduction
- §8.2 II. Immigration Consequences of Sentence
- §8.3 A. Definition of "Sentence Imposed"
- §8.4 1. What Is Included in "Sentence Imposed"
- §8.5 2. California Youth Authority Commitment Does Not Qualify as a Sentence to Confinement
- §8.6 B. Length of "Sentence Imposed"
- §8.7 1. Aggravated Felonies Requiring 1-Year "Sentence Imposed"
- §8.8 a. The 1-Year List
- §8.9 b. Reduction of Sentence Below 1 Year
- §8.10 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less
- §8.11 a. Petty Offense Exception Generally
- §8.12 b. Effects of Petty Offense Exception in Specific Immigration Contexts
- §8.13 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More
- §8.14 4. Mandatory Detention Is Triggered if a Noncitizen Is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed
- §8.15 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §8.16 6. A Conviction Is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed Is 1 Year or Less, Even if the Maximum Sentence Is Greater
- §8.17 C. Length of Actual Confinement
- §8.18 1. To Be Eligible for the Former Waiver of Deportability under INA 212(c), the Noncitizen Must Avoid Service of an Actual Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §8.19 2. A Noncitizen Is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More
- §8.20 3. Situations that Require Good Moral Character
- §8.21 D. Naturalization May Not Be Granted if the Applicant Is Currently On Probation or Parole
- §8.22 E. The Sentencing Judgment, Which Forms Part of the "Record of Conviction," Can Lead to Adverse Immigration Consequences
- §8.23 III. Obtaining an Effective Order Vacating or Reducing a Sentence
- §8.24 A. Effect of Vacating the Conviction
- §8.25 B. Vacating the Original Sentence on a Ground of Legal Invalidity
- §8.26 C. Obtaining an Order Modifying the Original Sentence
- §8.27 D. Modifying a Sentence Under a State Rehabilitative Statute
- §8.28 IV. Procedural Vehicles for Vacating or Reducing the Sentence
- §8.29 A. Direct Appeal from Sentence
- §8.30 B. Petition for Writ of Habeas Corpus
- §8.31 C. Non-Statutory Motion to Vacate Sentence
- §8.32 D. Petition for a Writ of Error Coram Nobis
- §8.33 E. Motion to Correct Void Sentence
- §8.34 F. Commutation or Correction of Sentence Under Penal Code §x1170
- §8.35 G. Motion to Shorten Probation
- §8.36 1. Shortening Probation in Driving Under the Influence Cases
- §8.37 2. Note on Shortening Parole
- §8.38 V. Grounds to Vacate the Sentence
- §8.39 A. Jurisdictional Defects
- §8.40 B. Substantive Constitutional Guarantees
- §8.41 C. Due Process Rights in the Sentencing Hearing
- §8.42 D. Violations of the Right to Counsel
- §8.43 1. The Right to Counsel
- §8.44 2. Ineffective Assistance Generally
- §8.45 3. Immigration-Related Ineffective Assistance at Sentencing
- §8.46 4. Examples of Ineffective Assistance of Counsel with Respect to the Immigration Consequences of the Sentence
- §8.47 a. Moral Turpitude Offenses
- §8.48 b. Length of Sentence of Incarceration
- §8.49 c. Aggravated Felonies
- §8.50 d. Anticipating Post-Conviction Relief
- §8.51 E. Seeking a Judicial Recommendation Against Deportation
§ 8.42 D. Violations of the Right to Counsel
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Perhaps the most fertile ground on which to vacate a sentence as legally invalid is the denial of the right to counsel and the effective assistance of counsel. Such claims are properly raised via a habeas corpus petition or a nonstatutory motion to vacate.
