Post-Conviction Relief for Immigrants

Chapter

§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 (C)

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(C) Procedure. The FFOA provides for a form of pre-judgment probation, in which the court, with the consent of the defendant, places the person on probation for a term of not more than one year without imposing a judgment of conviction.[20] After successful completion of probation, the court shall dismiss the proceedings against him or her.[21]

[20] 18 U.S.C. § 3607(a).

[21] Ibid.