Tooby's California Post-Conviction Relief for Immigrants

The challenge is now, after vacating the original conviction or sentence, through standard criminal defense techniques, to achieve a new outcome of the criminal case that the client can live with from an immigration standpoint as well as a criminal standpoint.  It is necessary to do whatever research or consultation is required in order to obtain an exact understanding of which of the possible criminal outcomes have acceptable immigration consequences. 

            This task is little different from that of mounting an original criminal defense in light of the exact immigration consequences threatened by the different potential dispositions of the case.  Considerable literature is available to assist counsel in this effort.[14]

            Even though a conviction may have been vacated, the defendant could be retried.  For example, the Ninth Circuit has held that the reversal of a conviction for a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial.[15]  Similarly, after a vacatur, the criminal court is free to resentence on the remaining counts.[16]  This is because after a vacatur, all charges are reinstated.[17]

            The basic approach to defending a criminal case, so as to take immigration consequences fully into account, is quite simple:

(1) Obtain exact information on the client’s immigration situation;

(2) Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences;

(3) Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals;

(4) Formulate a strategy that gives appropriate weight to the need to minimize adverse immigration consequences, in light of the other consequences of the criminal case and the desires of the client; and

(5) Continue to consult with an immigration attorney since additional immigration questions frequently arise during the course of the case.

[14] E.g., N. Tooby & J. Rollin, Criminal Defense of Immigrants (2007); K. Brady; D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (West Group 2009); K. Brady & N. Tooby, How to Protect Defendants from Immigration Consequences, 24 California Attorneys For Criminal Justice Forum, No. 3, 42 (August, 1997); D. Keener, M. Mehr, & N. Tooby, Representing the Noncitizen Criminal Defendant, Chap. 52 in California Continuing Education of the Bar, California Criminal Law: Procedure And Practice (2008).

[15] United States v. Jose, 425 F.3d 1237 (9th Cir. 2005). 

[16] United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining counts of conviction).  Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997); United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

[17] Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006).