Tooby's California Post-Conviction Relief for Immigrants

When ineffective assistance of counsel results in prejudice against a client, the proper remedy is to place the client in the same position s/he would have occupied at the time the error occurred under the law as it existed at that time.[127]  Thus, the proper remedy for ineffective assistance of counsel at sentencing is to give the defendant the sentence s/he would likely have received absent counsel’s error.[128]  In the alternative, the defendant should be given a fresh sentencing hearing with all possibilities open that were open at the time of the original sentencing. 

            The court must generally apply the law in place at the time it conducts its review.[129]  However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the original hearing was held.[130]  Where the BIA’s failure to timely remedy an error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the person whose rights were violated a hearing under the law that would have applied at the time the error occurred.[131] 

            Justice can be served by granting relief nunc pro tunc, or under the doctrine of equitable tolling.[132]  In determining whether nunc pro tunc relief could be applied, one court looked at several issues.

[127] See Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (where counsel was ineffective for failing to file a suspension application due in 1994, before the stop-time rule of NACARA came into effect in 1997, the proper remedy required use of the deadline in effect in 1994 when the ineffectiveness occurred, to allow timely filing); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[128] United States v. Fernandez, 2000 WL 1716436 (S.D.N.Y. 2000).

[129] Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999).

[130] See, e.g., Castillo-Perez v. INS, 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing); Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law).

[131] Guadalupe-Cruz, 240 F.3d at 1212.

[132] Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled).