Tooby's California Post-Conviction Relief for Immigrants

 

It is very dangerous for a client who has been deported, especially after a criminal conviction, to re-enter the United States.  See § 11.24, supra, concerning the federal criminal penalties for illegal re-entry after deportation.  If such a person appears in a state post-conviction proceeding, especially where issues regarding the immigration consequences of a criminal conviction are raised, there is a grave risk that the prosecution will become aware of the client’s immigration status, as well as criminal history, and put the two together to conclude that the client has committed a serious federal felony.  If the prosecution makes a simple phone call to the DHS, at the next court appearance, the client may find s/he is under federal arrest and charged in United States District Court with illegal re-entry after deportation.

 

It is even problematic to obtain a declaration from a client under these circumstances.  The declaration, at the foot, swears that the client signed the declaration on a certain date, at a certain place.  If that date is after the client’s deportation, and if the place is within the United States, the declaration on its face establishes that the client illegally re-entered the United States and could provide powerful evidence of a serious federal felony.

 

It is better to recommend to such a client a return to his or her home country, from where (a) post-conviction counsel can obtain a notarized declaration under penalty of perjury for use in the post-conviction proceeding, and (b) immigration counsel can seek to parole the client into the United States temporarily on a non-immigrant basis as indicated in the preceding subsection.