Post-Conviction Relief and Immigration


This law office specializes in providing consultations, strategies and sometimes sample legal papers to modify and use in obtaining post-conviction relief for immigrants, in order to eliminate the adverse immigration consequences of criminal convictions and sentences.



Post-Conviction Qualifications


Norton Tooby has practiced criminal law almost exclusively since January, 1971, in both federal and state court.  During that entire period, he has handled post-conviction cases in criminal courts, in both trial and appellate courts.  He handled a death penalty appeal in the California Supreme Court, which resulted in reversal of all convictions and eventually setting the client at liberty.  People v.  Marks, 45 Cal.3d 1335 (1988).  Since that time — for more than 25 years — he has concentrated on obtaining post-conviction relief for immigrants.


His published post-conviction victories in the field of post-conviction relief for immigrants include People v. Totari, 111 Cal.App.4th 1202 (2003) (reversing trial court’s order denying a motion to vacate a conviction under Penal Code § 1016.5); People v. Totari, 28 Cal.4th 876 (2002) (holding that denial of a motion to vacate a conviction under Penal Code § 1016.5 is appealable); In re Resendiz, 25 Cal.4th 230  (2001) (holding that defense counsel’s misadvice concerning actual immigration consequences of plea constitutes ineffective assistance of counsel, resulting in reversal if prejudice is shown, even if the defendant was given the advice on possible immigration consequences required by Penal Code § 1016.5)(represented amici curiae on the briefs and at oral argument).  He was lead counsel in People v. Kim (2009) 45 Cal.4th 1078, which held the criminal court has no authority to grant coram nobis relief after custody has expired where no one knew the actual immigration consequences of a plea.  He consulted on Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (March 12, 2010), in which Justice Stevens relied on N. Tooby, Criminal Defense of Immigrants (2003), as an authoritative treatise in support of his holding that criminal defense counsel must give each noncitizen defendant accurate advice on the immigration consequences of a conviction.

He has written a number of practice manuals entirely devoted to post-conviction relief for immigrants.  N. Tooby, California Post-Conviction Relief for Immigrants (2d ed 2009); N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004), and N. Tooby, California Expungement Manual (2002).  In addition, each of the other practice manuals published by this office contains a chapter devoted to post-conviction relief, and he has contributed an extensive chapter on California post-conviction relief to K. Brady, N. Tooby, et al., Defending Immigrants in teh Ninth Circuit (ILRC 2008, with 2013 supp.).



Post-Conviction Relief and Deportation


Post-conviction relief in criminal cases plays an increasingly important role in defense of immigrants in removal proceedings, because Congress has increasingly deprived immigration judges of discretion to grant waivers of deportation for broader and broader groups of removable offenses.  Even where relief is theoretically available, it is almost always discretionary, and the immigration authorities may well decline to grant it in an individual case.


Where there is no defense against removal, and no relief available, the only way to avoid deportation may be to obtain post-conviction relief in criminal court to eliminate the conviction that is triggering deportation.


Even where there are arguments that a given conviction does not trigger deportation, or where the person is eligible for discretionary relief from removal in immigration court, the safest course of action is to pursue post-conviction relief in the criminal court as well, since the chances of obtaining relief in criminal court are added to the chances of avoiding removal in immigration proceedings.  Trying both avenues produces the greatest total chance of victory.



Evaluating the Chances of Post-Conviction Relief


Since post-conviction relief can be difficult and expensive, it is important where possible to evaluate the chances of winning post-conviction relief before investing too much time and resources in the process.  See N. Tooby, Evaluating the Chances of Obtaining Post-Conviction Relief, in the Free Resources area of this website.  See also the Post-Conviction Case Evaluation Checklist there as well.  These resources provide a list of practical factors that can help identify those cases in which there is a realistic chance of success.  It is also important to check the post-conviction relief vehicles available in the jurisdiction in which the conviction arose to ensure that one or more vehicles is in fact available to be used for this purpose at this time.



Post-Conviction Legal Services


This office provides post-conviction legal services in the following ways:


Initial Consultations involve completing an Intake Form and submitting it to this office with the necessary documents from the criminal case(s) for review.  This initial review is done without charge.  If we feel we may be able to help, we will quote a consultation fee, and conduct a consultation of up to 1 ½ hours with one or more members of this office, that covers the exact criminal history, the immigration damage caused by the criminal cases, the changes in the criminal history necessary to avoid the immigration damage, and an analysis of the possibility of obtaining the necessary post-conviction relief to avoid the damage.


Post-conviction strategy and sample papers is the next stage.  If the consultation looks promising, this office conducts a fuller investigation of the convictions for which post-conviction relief is necessary or desirable.  We obtain all the transcripts and files possible, read everything carefully, and conduct all legal research necessary to do a feasibility study of the chances of obtaining the post-conviction relief.  The post-conviction strategy is laid out in a written outline that gives step-by-step instructions and legal authorities, as well as sample legal papers from another very similar case. That can be used as a model. We also include a referral to a post-conviction lawyer in the area where the conviction occured, who can do the rest of the necessary work.


In selected cases, this office may orchestrate the actual post-conviction attack on the conviction or sentence is the final stage.  This includes drafting all the papers necessary to be filed in the criminal court to attack the conviction, including the motion or petition, the memorandum of law, the supporting declarations, assembling the character letters and other exhibits, the proposed order granting the relief, and any necessary response to any objections filed by the prosecutor.  In addition, we recruit local counsel to handle the negotiations with the prosecutor and the court appearances, and consult with local counsel and immigration counsel throughout the case.  Finally, when the post-conviction relief is obtained, we draft an opinion letter to immigration counsel outlining how the immigration problems are solved, and attach certified copies of the order granting the post-conviction relief.


Local counsel set and collect their own fees for handling the negotiations and court appearances in the case.  We use local counsel both to save money (top criminal lawyers rates are less than rates charged by this office), and to improve the chances of success, because we choose local counsel where possible who has a good relationship with the judge and prosecutor who are handling the matter.




Requirements for Post-Conviction Success


Generally speaking, four factors are necessary to have success in obtaining post-conviction relief:


  1. Post-Conviction Vehicle.  We need a type of petition or motion to file in the criminal court where the conviction occurred for which the client qualifies and that is capable of giving the type of post-conviction relief the client needs.

  2. Grounds of Legal Invalidity.  We need one or more grounds of legal invalidity of the conviction or sentence that can allow or force the court to reopen the conviction or sentence in such a way as to eliminate the original conviction for immigration purposes.

  3. We need a “Safe Haven” disposition to which the client can plead guilty in order to replace the damaging conviction with an immigration-harmless alternative plea.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).

  4. Finally, we need sufficient “Equities,” or favorable factors, to motivate the prosecutor and court to assist us to rearrange the case so as to avoid the damaging immigration consequences.





The following books outline the post-conviction approach used by this office in considerable detail:
N. Tooby, California Post-Conviction Relief for Immigrants (2d ed 2009); N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004), N. Tooby, California Expungement Manual (2002).  In addition, each of the other practice manuals published by this office contains a chapter devoted to post-conviction relief.


For information on the post-conviction procedures used in each state, see D. Wilkes, State Post-Conviction Remedies and Relief Handbook (2009).