Tooby's California Post-Conviction Relief for Immigrants

For each of the criminal cases that poses an immigration problem that cannot be solved in immigration court, it is necessary to determine the minimum changes that post-conviction counsel must make in the client’s criminal history in order to avoid the net immigration damage that immigration counsel cannot avoid in immigration court.

            For example, if a client has a felony theft conviction, and the court has imposed a two-year suspended state prison sentence, the client’s conviction will be considered to be an aggravated felony.[5]  This will trigger removal, mandatory detention, and disqualification from cancellation of removal and many other forms of relief in immigration court.  Vacating the conviction entirely on some ground of legal invalidity will eliminate the ground of removal, as long as no removable conviction replaces the vacated conviction.  It is generally far more difficult, however, to vacate a conviction in its entirety than it is to vacate a criminal sentence and replace it with a smaller sentence.  If the two-year sentence were vacated, and replaced with a sentence of imposition of sentence suspended, and no more than 364 days in county jail as a condition of probation, that relatively minor change would transform the conviction from an aggravated felony conviction into a mere crime of moral turpitude (CMT) conviction.  Generally speaking, the more minor the change in criminal history that is necessary to avoid the immigration damage, the easier it is to achieve.  In this case, vacating and reducing the sentence below one year would be the minimum change necessary to avoid the immigration damage, assuming immigration counsel could deal successfully with any remaining immigration damage in immigration court.

[5] 8 U.S.C. § 1101(a)(43)(G).