Post-Conviction Relief for Immigrants
- §8.1 I. Introduction
- §8.2 II. Immigration Effects of State Rehabilitative Relief
- §8.3 A. General Rule: State Rehabilitative Relief Does Not Eliminate the Immigration Consequences of a Conviction
- §8.4 B. Exception: Federal First Offender Act
- §8.5 C. Exception: State FFOA Analogues in the Ninth Circuit
- §8.6 1. Qualifying Offenses
- §8.7 2. Qualifying Types of Relief
- §8.8 3. Disqualification from Effectiveness of Relief
- §8.9 4. Multiple Simultaneous Qualifying Convictions
- §8.10 D. Exception: Foreign FFOA Analogues in the Ninth Circuit
- §8.11 E. Prospects for this Rule in Other Circuits
- §8.12 F. Even Where State Rehabilitative Relief is Effective to Eliminate a Conviction, the Underlying Conduct Can be Considered as a Negative Discretionary Factor
- §8.13 III. Protecting the Client Before Relief is Available
- §8.14 A. Immigration Court
- §8.15 1. Obtaining a Continuance
- §8.16 2. Seeking Appellate Review
- §8.17 B. Criminal Court
- §8.18 1. Avoiding a Final Conviction
- §8.19 2. Expediting Rehabilitative Relief
- §8.20 IV. Rehabilitative Relief in Different Jurisdictions
- §8.21 V. Judicial Recommendations Against Deportation
- §8.22 A. Immigration Effects
- §8.23 1. Deportation Grounds Excused
- §8.24 2. Varieties of Immigration Effects
- §8.25 3. Foreign JRADs Ineffective
- §8.26 4. Continuing Validity of Pre-1990 JRADs
- §8.27 B. Procedure
- §8.28 1. Notice to Immigration Authorities
- §8.29 2. Timing of Effective JRAD
- §8.30 C. Ineffective Assistance of Counsel in Failing to Seek JRAD
- §8.31 1. Ground to Vacate Sentence
- §8.32 2. Remedy to Allow Timely JRAD
- §8.33 D. Retroactivity of Repeal of JRAD Authority
- §8.34 1. Effective Date of Repeal
- §8.35 2. Congressional Intent in Light of St. Cyr
- §8.36 3. Ex Post Facto Argument
- §8.37 E. Government May Not Attack Validity of JRAD in Immigration Court
- §8.38 VI. Executive Pardon
- §8.39 A. Immigration Effects of a Pardon
- §8.40 1. Qualifying Deportation Grounds
- §8.41 2. Immigration Benefits
- §8.42 3. Nature of Effective Pardon
- §8.43 4. Foreign Pardons Ineffective
- §8.44 B. Experience in Particular States
§ 8.4 (A)
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(A) Listed Offenses. The FFOA applies to those convicted in federal court of knowingly or intentionally without authorization possessing any controlled substance (or gratuitous distribution of a “small amount of marijuana”).[17]
[17] 21 U.S.C. § § 844(a)(possession), 841(b)(4)(gratuitous distribution of marijuana).
