Tooby's California Post-Conviction Relief for Immigrants

In negotiating with the prosecution, it has rarely been fruitful to approach the government lawyer until a motion or petition has been filed with the court.  If counsel goes in cold, even with a large package of favorable information concerning the client, the course of least resistance for the prosecution, involving the least work, is simply to say, “No.”  Once a motion has been filed, the old case file in the prosecutor’s office is pulled from storage, the case is assigned to someone to handle, and a court date (ideally) is approaching.  At that point, the course involving the least work may well be to settle the case with defense counsel.

            It is urgent to have in mind exactly the outcome the client needs in order to avoid the adverse immigration consequences.  The chances of a successful negotiation are enhanced if counsel can offer greater offense and sentence counsel as substitutes for the conviction and sentence that must be vacated.  In other words, if you approach the prosecution asking that a felony sale of heroin conviction be vacated, and the charges dismissed, the prosecution may be reluctant.  On the other hand, if you can offer a substitute felony, such as a conviction of accessory after the fact to sale of drugs, with reinstatement of the original sentence and credit for full satisfaction of that sentence, the prosecution gets a new felony conviction out of the deal, as well as reinstatement of the original sentence, and may feel s/he is giving up a good deal less.

It often helps to write a settlement proposal in the form of a letter to the prosecutor, outlining exactly what you want, and giving a list of reasons why this is a reasonable disposition.

On occasion, court or prosecutor will take the position it is somehow improper to reopen a criminal case for the purpose of avoiding adverse immigration consequences, as if it were to defeat “the will of Congress” or frustrate federal law.  To counter this position, it is possible to argue that California law requires counsel to do so,[8] and to put forward all the factors that indicate a compassionate disposition is appropriate in the present case.[9]  What follows are sample arguments on these two points.  A sample script is also offered below.[10]

[8] See § 11.5.

[9] See § 11.6, infra.

[10] See § 11.7.