Tooby's California Post-Conviction Relief for Immigrants

If the client has suffered an aggravated felony conviction, was deported, and then returned illegally, it is extremely difficult to attempt to clear criminal convictions or sentences.  The client is subject to arrest on view by the FBI and ICE for violating 8 U.S.C. § 1326(b)(2), a federal criminal offense carrying a maximum of 20 years in custody.  Federal prosecutors are currently granting plea bargains requiring service of at least several years in prison in these cases, depending on the jurisdiction and on the extent of the client’s prior criminal and deportation history.

            If the client signs a declaration, it must include the date and city in which it was signed.  If it was signed in the United States, the declaration on its face provides proof of the § 1326(b)(2) violation.  Alternatively, the client could leave the country and sign the notarized declaration abroad, but then would not be present in the United States to lend life and substance to the post-conviction litigation in court.  Moreover, the prosecution could successfully object to the admissibility in evidence of the client’s declaration if the client is not offered in person for cross-examination.

            It is theoretically possible for the Attorney General to grant an alien parole into the United States to attend court appearances during post-conviction litigation, but I have not heard of it actually being done.[3]  (Defense witnesses in capital cases have on occasion been admitted into the United States to testify, so there is no legal reason why this could not also be allowed for the defendant, but it is somewhat more difficult to arrange.)

            The client who is not in the county can usually offer, at best, declarations from afar to assist in the post-conviction work.  Although it is possible that the state authorities will not realize that the client is subject to immigration arrest for illegal re-entry, it is not a safe bet.  A number of years ago, I filed a state habeas corpus petition for an undocumented client who suffered from lung cancer and was undergoing extensive treatment here.  After a couple of court hearings, the prosecutor told me that next time she would call DHS agents as witnesses concerning the immigration consequences the client suffered.  After intensive consultation, the client decided to withdraw the habeas petition rather than run the risk that he would be arrested when he next appeared in court.

[3] See INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).