Tooby's California Post-Conviction Relief for Immigrants

Different post-conviction vehicles are useful for accomplishing different tasks.  Through analysis of the minimum changes in the client’s criminal history suggested above, counsel will have identified the specific convictions and sentences that need to be altered, and the specific way in which each must be altered, in order to avoid the immigration damage that is threatened.

            There are four particular factors that enter into the selection of a particular form of post-conviction relief in an individual case.

(1)  Immigration Effect.  The vehicle must be capable of eliminating the particular adverse immigration consequence sought to be avoided.  In other words, the form of post-conviction relief -- if granted -- must have the necessary immigration effect.

(2)  Eligibility for the Form of Relief.  The client must be procedurally eligible to obtain the particular form of post-conviction relief needed.  In other words, the client must meet the procedural requirements for granting the relief, or it must be possible to arrange for him or her to do so in time to avoid the threatened immigration damage.

(3)  Grounds for Relief.  It must be possible factually to establish the necessary substantive grounds for granting the relief sought.  Particular grounds must match the particular post-conviction vehicle sought to be used.

(4)  Favorable Equities.  The client’s case must possess sufficient favorable equities to motivate the prosecutor and court to agree that the post-conviction relief should be granted.

            Generally, each necessary change in the client’s criminal history will fall into one of the following classifications:

· Elimination of a conviction.  (See Chapters 6 and 7, infra.)

· Reduction of a sentence. (See Chapter 8, infra.)

· Reduction of the total amount of custody time actually served.  (See Chapters 8 and 9, infra.)

· Reduction of the level of the offense, i.e. reduction of felony to misdemeanor, or reduction of misdemeanor to infraction.  (See Chapter 9, infra.)

·   Record-clearance under state rehabilitative statutes analogous to relief under the Federal First Offender Act.  (See Chapter 10, infra.)

Counsel must identify the forms of post-conviction relief that are capable of achieving the desired immigration effect.  Counsel must then determine whether the client meets the eligibility requirements for each form of relief, and whether grounds and equities are present sufficient to motivate the prosecution and court to grant relief.  Specific forms of post-conviction relief are necessary in order to achieve each of these particular effects.