Post-Conviction Relief for Immigrants

Favorable “equities” are often of importance equal to or greater than legal argument in obtaining post‑conviction relief.  Counsel may use them to persuade judges, prosecutors, former defense lawyers, and others to support the client’s efforts to remain in the United States.  Equities are facts that humanize the client, and constitute reasons why it is important for the client to be able to avoid the harsh immigration consequences of the conviction.

            For a list of common equities, see § 2.5, supra.  The equities should be recorded in a declaration from the client, corroborated with as much supporting information as possible, and repeated as litigation and negotiation themes.

            PRACTICE POINTER:  In describing the client’s past life, do not make admissions concerning drug trafficking, addiction, or abuse, habitual drunkenness, or prostitution.  The immigration authorities could use such a declaration — even without a conviction for such behavior — as a basis for deportation or exclusion.[12]

[12] See N. Tooby, criminal defense of immigrants, Chapter 2 (2003), for a listing of conduct-based grounds of inadmissibility and removal as to which admissions should be avoided.  See also California Criminal Law And Immigration, Chapter 3 and § 6.2.