Tooby's California Post-Conviction Relief for Immigrants

This chapter will cover selected practical topics relevant to obtaining post-conviction relief in California state courts with the goal of eliminating or ameliorating adverse immigration consequences flowing from criminal convictions and sentences.

It will not cover the practical aspects of investigating, evaluating, or researching a California post-conviction case, or the substantive or procedural requirements pertaining to the different vehicles for vacating convictions or sentences in California courts.  Similarly, it will not cover the area of state rehabilitative statutes, such as expungements or pardons.  Finally, it will not cover how to obtain a safe disposition after the conviction or sentence has been vacated or reduced.  These topics are covered elsewhere.

The following topics will be addressed in this chapter.

·       Bias Against Immigrants.  This chapter will cover the topics of dealing with bias against immigrants (sometimes called “xenophobia”), and how to negotiate a post-conviction case in light of common obstacles to obtaining agreement of prosecutor or court to grant relief in these cases.  In addition, it will cover legal authority indicating that (a) criminal defendants are entitled to the benefit of all reasonable doubts concerning the facts and law, and (b) in light of the drastic consequences of deportation, immigrants also are entitled to all reasonable doubts in these cases.

·     Obtaining Court Funding.  This chapter will deal with the question of how to obtain a court appointment to represent an immigrant in post-conviction proceedings attacking a criminal conviction or sentence.

·     Interpreters.  This chapter will offer suggestions for counsel in selecting an interpreter to help counsel and client understand each other effectively, and the effective use of an interpreter during judicial proceedings.

·     Obtaining Release from Immigration Custody.  This chapter will outline the law as it relates to immigration holds, a.k.a. Border Patrol holds, and how to get them lifted, as well as how to obtain the client’s release on immigration bond, when this is possible, in light of the harsh new rules regarding mandatory immigration detention.

·      Relief After Deportation.  This chapter will deal with the difficult question of how to obtain post-conviction relief after the client has been deported.  It will cover law indicating that the proceedings are not necessarily made moot by the deportation of the client, and the power of the immigration courts to bring the client back after deportation, if the conviction that triggered the deportation has been vacated.

·     Illegal Re-Entry Exposure.  This chapter will offer brief guidance concerning the client’s potential exposure to fresh federal criminal penalties for returning illegally to the United States after having been formally deported by the immigration courts, and suggestions on the defense of those cases.

·      Obtaining the Client’s Presence After Deportation.  This chapter will discuss the challenging topic of various means of obtaining the client’s presence in court during post-conviction proceedings after the client has been deported.

·      Obtaining Evidence from the Client Living Abroad.  There are various means of obtaining evidence, for use in post-conviction proceedings, from clients living abroad or who have been deported.

·     Finding Expert Post-Conviction or Immigration Counsel.  Finally, this chapter will make suggestions concerning how to find competent expert counsel to assist in the process of obtaining post-conviction relief: how immigration or criminal defense counsel can find counsel experienced in the field of post-conviction relief, and how criminal or post-conviction counsel can obtain expert immigration help in these cases.