Post-Conviction Relief for Immigrants

It is very dangerous for a client who has been deported, especially after a criminal conviction, to re-enter the United States.[34]  If such a person appears in a state post-conviction proceeding, especially where issues regarding the immigration consequences of a criminal conviction are raised, there is a grave risk that the prosecution will become aware of the client’s immigration status, as well as the criminal history, and put the two together to conclude that the client has committed a serious federal felony: illegal re-entry after deportation.  If the prosecution makes a simple phone call to the immigration authorities, at the next court appearance, the client may find s/he is under federal arrest and charged in United States District Court with illegal re-entry after deportation.

It is even problematic to obtain a declaration from a client under these circumstances.  The declaration, at the foot, swears that the client signed the declaration on a certain date, at a certain place.  If that date is after the client’s deportation, and if the place is within the United States, the declaration on its face establishes that the client illegally re-entered the United States, and could provide powerful evidence that the client has committed a serious federal felony.

It is better to recommend that such a client return to his or her home country, from where (a) post-conviction counsel can obtain a notarized declaration under penalty of perjury for use in the post-conviction proceeding, and (b) immigration counsel can seek to parole the client into the United States temporarily on a non-immigrant basis as indicated in the preceding subsection.

[34] See INA § 276, 8 U.S.C. § 1326, concerning the federal criminal penalties for illegal re-entry after deportation.