Post-Conviction Relief for Immigrants

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 time and paid the penalty for the offense.

            2.         The client is threatened with extreme immigration consequences over and above the penalties that would be imposed upon a U.S. citizen in identical circumstances.  Note that it may be necessary to deemphasize the adverse immigration consequences of the conviction in the moving papers and reporter’s transcript of the post-conviction hearing in order to avoid a situation in which the immigration courts refuse to honor the vacatur as having been based upon adverse immigration consequences, rather than upon a ground of legal invalidity.  See Chapter 4, supra.

            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., to vacate the old conviction and dismiss the charge in the interests of justice or substitute a relatively harmless equivalent conviction in its place.

            5.         The conviction must be vacated in any event because of the ground of legal invalidity present in the case, e.g., the plea was invalid since the client was not informed of its immigration consequences, ineffective counsel, and the like.  (If the conviction is not vacated on some ground of legal invalidity, the INS may not accept the order vacating the conviction as eliminating it for immigration purposes.)[17]

[17] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).  See Chapter 4, supra.