The procedure for obtaining post‑conviction relief is generally similar to criminal motion practice.[25]  This requires developing the proof that the client is entitled to the relief sought, in the form of certified copies of court records, reporter’s transcripts, and declarations under penalty of perjury from all witnesses, often including client, original counsel, and immigration counsel.

 

            Usually the claim for relief will be made in the court which originally handed down the conviction.  Obtain a court date on the criminal law and motion calendar, or a date before the judge who rendered the conviction, file the moving papers with the court, and serve them on the prosecution at least two weeks in advance.  Consult local practice and the rules of court concerning procedure.

 

            The prosecution and court will often be relatively unfamiliar with the procedural vehicle or grounds presented.  It is therefore important to package the request for relief in as palatable a way as possible, along the following lines:

 

(1) The case is long over, and the client has served the term and paid the penalty for the offense.

 

(2) The client is now threatened with extreme immigration consequences over and above the penalties that would be imposed upon a citizen in identical circumstances.

 

(3) All the equities of the client’s spouse, family, good record, and the like indicate that the immigration consequences are unduly harsh and unnecessary.

 

(4) The client is merely seeking, e.g., vacating the old conviction and dismissing the charge in the interests of justice.

 

(5) The conviction must be vacated in any event because of legal invalidity, e.g., the plea was invalid since the client was not informed of its immigration consequences.[26]

 

It is necessary for the moving papers (motion to vacate, or petition for extraordinary relief) to claim that the conviction or sentence is legally invalid, rather than asking that the conviction be vacated for compassionate or discretionary reasons, such as solely to avoid the immigration consequences, since the immigration authorities may not accept the latter,[27] but must accept an order vacating an invalid conviction as sufficient to eliminate that conviction for immigration purposes.[28]

[25] Habeas corpus has special procedural rules.  See Chapter 6, infra.

[26] See In re Resendiz (2001) 25 Cal.4th 230 (affirmative misadvice concerning immigration consequences can constitute deficient performance for purposes of ineffective assistance of counsel claim); People v. Soriano (1987) 194 Cal.App.3d 1470.  See Chapter 7, infra.

[27]   Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

[28]  Ibid.; United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd, 465 F.3d 263 (6th Cir. 2006); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

Other

CRIM DEF " SANTA CLARA COUNTY DA POLICY ON IMMIGRATION CONSEQUENCES
On Sept. 14, 2011, Santa Clara District Attorney Jeff Rosen issued a Memorandum to his office allowing for the consideration of collateral consequences of criminal convictions in plea bargaining in appropriate cases. The new policy states: It is not generally the duty of a prosecutor to mitigate the collateral consequences to a defendant of his or her crime. However, in those cases where the collateral consequences are significantly greater than the punishment for the crime itself, it is incumbent upon the prosecutor to consider and, if appropriate, take reasonable steps to mitigate those collateral consequences. The new policy of the Santa Clara County District Attorneys Office on consideration of immigration consequences in plea bargaining can be found on the AILA NorCal website under the Local Law Enforcement Liaison page. District Attorney Jeff Rosen and his staff deserve credit for adopting this new policy.

CAL POST CON " SANTA CLARA COUNTY " NEW HEAD PROSECUTER IS MORE OPEN TO POST-CONVICTION RELIEF
Immigration counsel, including Michael Mehr and Kathy Brady, have been in negotiations with the new District Attorney of Santa Clara County, concerning a new policy more favorable to (1) negotiating plea bargains to take disproportionate immigration consequences into account, and (2) negotiating the granting of post-conviction relief under similar circumstances. The final new policy has not yet been adopted, but it appears likely that the Santa Clara County District Attorneys Office will take immigration consequences into account unless there is a violent or serious felony, in which case there will be a presumption against taking immigration into account. In addition, they may choose not to oppose a grant of post-conviction relief if there are good, solid equities and reasons why the immigration disaster caused by the conviction is disproportionate to the crime. This is especially true if the plea is to a more serious or equally serious offense. As a result of the new regime, Michael Mehr has negotiated two new dispositions in which post-conviction relief was granted by writing a letter and making phone calls without filing a motion for post-conviction relief. The reason: If the motion for PCR goes to the law and motion department, they will just file an opposition. It is better to talk with a supervisor. Local counsel may also have a better chance of negotiating a better result. Specifically, he vacated a second petty offense conviction, even though there was no jurisdiction to file a habeas and no real 1016.5 case, with a new plea to a violation of Penal Code 415 with an additional 10 days work release. In another case, he vacated a possession for sale conviction vacated under Penal Code 1016.5 (even though there was no violation of that statute) and substituted a conviction of offering to sell with no additional sentence. Thanks to Michael Mehr.