Tooby's California Post-Conviction Relief for Immigrants

If it is feasible to vacate the problematic conviction completely by means of post-conviction relief, then that should be the strategy.  More often, however, making any change in the criminal history is difficult, so it is important to develop a strategy in which the chances of success are as great as possible.  This means that post-conviction counsel must do as much of the work as possible to obtain post-conviction relief in criminal court to eliminate as much of the immigration damage caused by criminal cases as possible.  Then, it is more realistic to hope that immigration counsel can obtain immigration relief in immigration court to achieve the more limited goals that remain.

            It is, however, becoming more difficult for immigration counsel to obtain a waiver in immigration court.  If criminal counsel vacates a conviction and succeeds in avoiding mandatory deportability, but immigration counsel is unable to obtain a waiver of removal, it may be too late for criminal counsel to go back into criminal court and seek to vacate sufficient convictions to avoid removal completely.  Due diligence requiriements, and bars to successive petitions, may prevent doing so.  Therefore, counsel must make sure to obtain sufficient post-conviction relief in the first place to solve the problem.