Tooby's California Post-Conviction Relief for Immigrants

 

There are seven basic ways to attack the validity of the conviction itself:

 

(1) Motion in trial court to withdraw guilty plea under Penal Code § 1018 (See § 6.15, infra.)

 

(2) Direct Appeal from Conviction (See § 6.16, infra.)

 

(3) Writ of Habeas Corpus (See § 6.24, infra.)

 

(4) Motion to Vacate Judgment or Writ of Error Coram Nobis (See § 6.41, infra.)

 

(5) Nonstatutory Motion to Vacate (See § 6.44, infra.)

 

(6) Statutory Motion to Vacate for Violation of Penal Code § 1016.5 (See § 6.49, infra.)

 

(7) Motion to dismiss in the interests of justice. (See § 6.58, infra)

 

            Success in any of these avenues will vacate the conviction completely, ab initio, as if it had never existed, and eliminate any adverse immigration consequences of the conviction.  Recall, however, that some grounds of deportation and exclusion -- such as prostitution and drug trafficking, addiction, and abuse -- are based on conduct, and therefore do not depend on a conviction. For these grounds, evidence that the person committed the triggering act may bring immigration penalties even if there is no conviction or the conviction has been vacated.

 

            Vacating the judgment of conviction will also eliminate the immigration effect of any sentence or imprisonment resulting from the conviction.  See § 8.24, infra. A petition for an extraordinary writ may be brought simply for purposes of vacating the original sentencing, and obtaining a fresh sentencing hearing, while leaving the conviction itself intact.[1]  A new sentence imposed by the judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.[2]  See Chapter 8, infra, for discussion of the immigration consequences of sentences and confinement, and the procedural vehicles specifically directed at vacating or reducing the sentence, as opposed to the conviction.

 

            When a judgment has been vacated, the conviction is eliminated ab initio, as having been illegal from the time it was imposed.  When this occurs, it is important to (a) obtain a certified copy of the order vacating the conviction, since the immigration courts often require certified copies, and (b) correct the state and federal criminal history records so the client's rap sheets reflect the new information that the conviction has been vacated.[3]  In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction is vacated.[4]

 

            The granting of relief under Penal Code § 1203.4 did not deprive the trial court of jurisdiction to consider Post-Conviction Relief.[5]

[1] See, e.g., People v. Barocio (1989) 216 Cal.App.3d 99.

[2] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation).

[3] See Chapter 12, infra; K. Brady, § 8.10.

[4] See Chapter 12, infra.

[5] People v. Totari (2002) 28 Cal.4th 876; People v. Wiedersperg (1975) 44 Cal.App.3d 550; People v. Vasquez (2001) 25 Cal.4th 1225.