Tooby's California Post-Conviction Relief for Immigrants

Sometimes counsel will encounter a judge or prosecutor with a blanket policy against agreeing to provide immigration relief to noncitizens.  If the relief cannot be obtained at the trial level for this reason, if possible make a record of such a “blanket policy” against noncitizens, and attempt to obtain relief on appeal.

            Overt discrimination on the basis of national origin is forbidden by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.[1]  Nationality is a forbidden and illogical criterion upon which to base state action.[2]

            In the context of criminal law, California courts have applied the compelling state interest test,[3] and have specifically held it improper to consider nationality as a factor in imposing sentence, although unlawful immigration status might be a proper factor.[4]  Lack of citizenship has been held a proper factor justifying high post-conviction bail.[5]

            Certainly, discretion may not be based upon an impermissible factor,[6] nor may it be based on an illogical factor.  If relief such as early termination of probation, which would be available to a citizen similarly situated, is denied on grounds of a blanket policy against noncitizens, it should be possible to obtain relief on appeal.

            If a judge or prosecutor is highly biased against granting immigration relief, it may sometimes be prudent not to disclose the fact that the relief sought (e.g., early termination of probation, or entry of a plea to a non-moral turpitude offense) will save the client from removal.

            Courts sometimes act against noncitizens solely on the basis of nationality or immigration status.  While the law sometimes permits this, it also prohibits it on occasion as well.  An opinion of the Attorney General summarizes the law as of January 8, 1997, stating, “California may not deport an illegal alien convicted of a crime as a condition of granting either probation or parole or make it a crime for such illegal alien to return to the state.  However, California may release the person to federal immigration authorities for deportation by the federal government.”[7]

            On a more practical level, discrimination frequently exists against stereotypes, and can be disarmed or neutralized if the client is transformed from a member of a class against which antipathy is held, into a human being.  Humanizing clients is a familiar task for all lawyers.  For example, if it is possible to introduce the prosecutor to a client in such a way as they shake hands, the prosecutor has more difficulty treating the client as a stereotype thereafter.

[1] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[2] See, e.g., In re Kotta (1921) 187 Cal. 27, 29 (poll tax on aliens); Truax v. Raich, 239 U.S. 33 (1915) (statute requiring employers to hire a certain percentage of citizens); B. witkin, summary of california law, Constitutional Law, sec. 619, pp. 72 et seq.

[3] E.g., People v. Sage (1980) 26 Cal.3d 498, 506‑508, 165 Cal.Rptr. 280, 284‑285.

[4] People v. Johnson (1988) 205 Cal.App.3d 755, 758, 252 Cal.Rptr. 302, 303 (remanded for resentencing with direction that appellant’s noncitizen status not be relied upon in fixing his term).  But see People v. Sanchez (1987) 190 Cal.App.3d 224, 235 Cal.Rptr. 264 (consideration of illegal alien status as factor in denying probation did not violate equal protection or due process); People v. Arciga (1986) 182 Cal.App.3d 991, 227 Cal.Rptr. 611 (illegal noncitizen status properly considered in decision to exclude defendant from California Rehabilitation Center since client would probably not be available to complete outpatient component).

[5] People v. Marghzar (1987) 192 Cal.App.3d 1129, 239 Cal.Rptr. 130.

[6] See People v. Corvino (1980) 100 Cal.app.3d 660, 671‑672, 161 Cal.Rptr. 155, 161‑162; People v. Johnson, supra.

[7] Ops. A.G., No. 96-801 (January 8, 1997), p. 1 (“May California deport an illegal alien convicted of a crime as a condition of granting either probation or parole, and may it make it a crime for such illegal alien to return to the state?”).