Post-Conviction Relief for Immigrants

 

Unless you have yourself researched the specific immigration questions facing your individual client, expert immigration advice is absolutely necessary.  There is no substitute for consulting an immigration expert to find out (a) the client’s exact immigration situation prior to any new conviction, and (b) the exact immigration effects for the client of each of the various possible alternative dispositions of the new criminal case.

 

            Crimes-related deportation defense is very complicated, and a specialty of its own.  Many immigration attorneys specialize in what is called business immigration: obtaining work permits, labor certificates, and visas for employees of corporations.  They may never handle a removal case or try to obtain cancellation of removal for a client convicted of a criminal offense, or only very rarely.  When seeking immigration counsel for a client with criminal issues, it is necessary to inquire specifically into potential immigration counsel’s experience with criminal issues.

 

            It is important to balance expertise in this specialty against the advantages of local counsel, who:

 

·  knows the personalities in the immigration courts on a daily basis and enjoys their respect;

 

·  knows local practice; and

 

·  has offices very close to the immigration court.

 

            On the other hand, an expert:

 

·  knows the arsenal of various forms of relief available in immigration court to noncitizens convicted of crimes;

 

·  is accustomed to cooperating with criminal and post-conviction counsel; and

 

·  either knows or is willing to learn the necessary criminal and post-conviction law.

 

            Look for names that come up repeatedly when you consult public defenders, reputable criminal defense lawyers, judges, local bar associations, and local criminal defense lawyer associations concerning local immigration lawyers experienced in criminal issues.

 

            Don’t assume someone is good.  Check them out.  Obtain several references and interview them.

            Conduct an interview, as if hiring an employee.  Consider asking the following questions:

 

(1)  Putting yourself aside for a moment, could you give me the names of three attorneys in this area who specialize in deportation defense of immigrants with criminal convictions?

 

(2)  How many crime-related immigration cases have you handled in the last year?  § 212(c) applications?  Cancellation of removal cases?  Do you consult with criminal lawyers concerning the immigration consequences of proposed plea bargains?  Have you spoken recently to criminal lawyers’ groups on this topic?  Where?  When?

 

(3)  What books do you have in your library concerning crime-related immigration issues?  (Look for D. Kesselbrenner and L. Rosenberg, Immigration Law and Crimes (West Group 2003), K. Brady, et al., California Criminal Law and Immigration (Immigrant Legal Resource Center 2003), M. Vargas, Representing Noncitizen Criminal Defendants in New York State (2d edition 2001), N. Tooby, Criminal Defense of Immigrants (National Edition 2003), N. Tooby, California Expungement Manual, as well as the present volume, N. Tooby, Post-Conviction Relief for Immigrants (2004).)

 

(4)  What crimes-related immigration work have you done lately and who were the criminal or post-conviction lawyers on those cases?  (You can then call them as references to check the lawyer out.)

 

            Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the course of representing noncitizens.

 

            The National Immigration Project of the National Lawyers Guild[39] is a valuable resource.  Headed by Dan Kesselbrenner, co-author of Immigration Law and Crimes, it is a clearinghouse on recent developments and litigation in immigration law and criminal issues, and sometimes organizes amicus briefing in significant cases. 

 

            Many local Bar Associations have lists of immigration attorneys, and a local chapter of the National Lawyers Guild or American Immigration Lawyers Association (AILA) will often be able to help.  The Washington, D.C., AILA office[40] will provide the name of a local AILA representative or, for a fee, their membership directory.

 

            The Immigrant Legal Resource Center, in San Francisco, California is a non-profit organization that provides advice, training and materials to non-profit community agencies and immigrants’ organizations.  For a modest fee, the Immigrant Legal Resource Center lawyers will provide criminal defense counsel with expert telephone consultation about immigration consequences of a criminal conviction.  For information, call (415) 255-9499.

 

Because of the frequency with which immigration issues now arise in a criminal or post-conviction practice, it is advisable to get to know an AILA member who can consult his or her directory and offer referrals in other areas as necessary.   AILA has local chapters across the country in many areas, and the national office can refer you to a member in your area.  Call AILA at the number given above.

 

            Many individual immigration counsel are willing to consult by telephone (if the call does not take too long) concerning immigration effects of proposed criminal dispositions.

 

            Since so many clients are immigrants, it is advisable for criminal defense counsel to establish an ongoing relationship with an office such as the Immigrant Legal Resource Center, or a specific immigration attorney with special experience concerning immigration consequences of criminal cases in order to receive consistent advice in this area as needed.

[39] 14 Beacon Street, Suite 506, Boston, MA 02108, (617) 227-9727

[40] 918 F Street, Washington, D.C. 20004, (202) 216-2400.