Post-Conviction Relief for Immigrants
Detailed Table of Contents
- Acknowledgements
- TOC Detailed Table of Contents
- Preface
- Table of Abbreviations
- § 1 Introduction and Overview
- §1.1 I. Origins of the Problem
- §1.2 II. The Challenge of Obtaining Post-Conviction Relief
- §1.3 III. Outline of This Volume
- §1.4 IV. Overview of Post-Conviction Relief
- §1.5 V. Introduction to Immigration Law for Criminal Lawyers
- §1.6 VI. Other Resources
- § 2 Evaluating the Chances of Obtaining Post-Conviction Relief
- §2.1 I. Identifying Winnable Cases: Introduction and Overview
- §2.2 II. A Triage Guide to Post-Conviction Cases
- §2.3 A. The Current Status of the Client
- §2.4 1. The Client Is Clean and Sober
- §2.5 2. The Client Has Strong Equities
- §2.6 3. The Client Has Served the Sentence and Is Now Out of Custody
- §2.7 4. The Client Has No Outstanding or Potential Arrest Warrants
- §2.8 5. The Client Has No Current Aggravated Re-entry Exposure
- §2.9 6. The Client is Lawfully Present in the United States
- §2.10 B. The Criminal Situation
- §2.11 1. A Small Criminal Case Has Large Immigration Effects
- §2.12 2. The Client Has 1 or Few Damaging Convictions
- §2.13 3. Number and Diversity of Original Charges
- §2.14 4. The Evidence of Guilt is Weak, or the Client Has a Plausible Claim of (at Least Partial) Innocence
- §2.15 5. The Client Was Charged Jointly With 1 or More Codefendants
- §2.16 6. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem
- §2.17 7. There is Small Risk the Client Will Receive Additional Time in Custody if the Case is Reopened and the Client is Reconvicted
- §2.18 a. Adverse Criminal Consequences
- §2.19 b. Adverse Immigration Consequences
- §2.20 8. The Jurisdiction Where the Conviction Occurred is Relatively Sympathetic
- §2.21 9. Incomplete Initial Defense Investigation
- §2.22 10. Technical Problems with Prosecution Case
- §2.23 C. Timing of the Case
- §2.24 1. Federal Time Limits
- §2.25 a. Motion to Vacate Sentence Under 2255
- §2.26 b. Coram Nobis Time Limits
- §2.27 c. Attacking State Convictions
- §2.28 2. Time Limits Within Which Actions for State
- §2.29 a. California Habeas Corpus and Nonstatutory Constitutional Motion to Vacate
- §2.30 b. California Coram Nobis for Violation of Penal Code 1016.5 Penal Code 1203.4(a) Misdemeanor
- §2.31 c. California Motion to Vacate Conviction
- §2.32 d. Expungement Pursuant to California
- §2.33 e. California Motion to Reduce Felony to
- §2.34 3. The Client Has 6 Months or More Before Irrevocable Immigration Damage Occurs
- §2.35 4. There is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated
- §2.36 5. The Records Necessary to Establish Error in the Criminal Case Still Exist
- § 3 Investigating the Case
- §3.1 I. Investigating the Case
- §3.2 II. Interviewing the Client
- §3.3 A. Special Considerations
- §3.4 B. Non-English Speaking Clients
- §3.5 III. Obtaining Information About Immigration Status
- §3.6 A. Check for Unknown U.S. Citizenship
- §3.7 B. Inform the Client of Illegal Re-entry Exposure
- §3.8 IV. Obtaining Information on “Equities” or Reasons Client Should be Allowed to Remain in the U.S
- §3.9 V. Obtaining Information About the Criminal Case
- §3.10 A. Determining Which Criminal History Reports to Order
- §3.11 B. Discovering How the Conviction Came About and Possible Grounds to Vacate
- §3.12 C. The Basic Criminal Case Interview
- §3.13 VI. Corroborating the Client’s Assertions of Prejudice
- §3.14 VII. Verifying the Immigration Situation: INS Records, FOIA Requests, and Analysis
- §3.15 A. Filing an FOIA Request
- §3.16 B. Information on Amnesty Clients
- §3.17 VIII. Verifying Exact Criminal History: Criminal Records and “Rap Sheets”
- §3.18 A. Obtaining the Client’s FBI Criminal Record
- §3.19 B. Obtaining the Client’s State Criminal Record
- §3.20 C. Obtaining DMV Conviction Records
- §3.21 IX. Correcting Errors in Criminal Histories
- §3.22 A. Correcting Errors in FBI Criminal History Reports
- §3.23 B. Correcting California State Criminal History Records
- §3.24 X. Official Destruction of Conviction Records Does Not Remove the Convictions Themselves
- §3.25 XI. Obtaining Conviction Records and Transcripts from the Rendering Court
- §3.26 XII. Obtaining the Case File From Original Defense Counsel
- §3.27 XIII. Ineffective Assistance: Interviewing Original Defense Counsel
- § 4 Effective Post-Conviction Relief
- §4.1 I. Introduction: Scope of the Chapter
- §4.2 II. Obtaining an Order Vacating a Criminal Conviction that the Immigration Authorities Will Respect
- §4.3 A. A Legally Invalid Conviction Cannot Trigger Immigration Consequences
- §4.4 1. The Long-Standing Rule
- §4.5 2. The New IIRAIRA Definition of Conviction and Matter of Pickering Did Not Change the Basic Rule
- §4.6 3. An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes
- §4.7 4. Reopening Removal Proceedings After a Conviction Has been Vacated
- §4.8 B. A Conviction Vacated on Purely Humanitarian Grounds, or Under a State Rehabilitative Statute, May Continue to Exist for Immigration Purposes
- §4.9 1. Humanitarian Grounds
- §4.10 2. State Rehabilitative Statutes
- §4.11 C. The Immigration Authorities Cannot Collaterally Attack, in Immigration Court, the Validity of a Criminal Court Order Vacating a Conviction
- §4.12 D. The Government Argument That An Order Vacating a Conviction is Beyond the Jurisdiction of the Criminal Court Should Not Be Accepted
- § 5 Vehicles for Vacating a Conviction
- §5.1 I. Introduction: 3 Requirements for Successful Post-Conviction Relief
- §5.2 A. Practical Requirements
- §5.3 1. Matching the Vehicle to the Immigration Effect
- §5.4 2. Matching the Vehicle to the Ground of Legal Invalidity
- §5.5 3. Choosing a Vehicle that Works
- §5.6 4. Timing of Post-Conviction Relief
- §5.7 B. General Considerations
- §5.8 1. Developing a Strategy
- §5.9 2. Obtaining the Relief: General Procedure
- §5.10 3. 10sion Between Strength of Ground and Equities
- §5.11 4. Adverse Criminal Consequences of Setting Aside Conviction
- §5.12 5. Vacating a Conviction Will Not Avoid Conduct-Based Immigration Consequences
- §5.13 6. Ex Post Facto Laws and Obtaining the Benefit of Changes in the Law
- §5.14 II. Federal Vehicles for Vacating a Conviction
- §5.15 A. Motion to Withdraw Plea
- §5.16 1. Procedural Requirements
- §5.17 2. Grounds
- §5.18 3. Immigration Consequences
- §5.19 B. Direct Appeal
- §5.20 1. Procedural Requirements
- §5.21 2. Filing a Late Notice of Appeal
- §5.22 3. Attacking a Waiver of Appeal
- §5.23 4. Immigration Consequences
- §5.24 a. Effect of Reversal of Conviction
- §5.25 b. Finality Of Decision
- §5.26 5. Negotiating a Better Result On Appeal
- §5.27 C. Habeas Corpus
- §5.28 1. General Requirements
- §5.29 2. Federal Habeas Corpus
- §5.30 3. The Petition Must Be Timely Filed
- §5.31 a. Federal Habeas Corpus and the AEDPA Statute of Limitations
- §5.32 i. The Starting Date
- §5.33 ii. Statutory Tolling
- §5.34 iii. Equitable Tolling
- §5.35 4. The Requirement Of Custody
- §5.36 a. Registration Requirements as Custody
- §5.37 b. Immigration Custody
- §5.38 c. Mootness
- §5.39 5. Procedure
- §5.40 6. Immigration Consequences
- §5.41 D. Coram Nobis
- §5.42 1. Procedure
- §5.43 2. Grounds
- §5.44 3. Immigration Consequences
- §5.45 E. Audita Querela
- §5.46 F. All Writs Act
- §5.47 III. State Vehicles for Vacating a Conviction
- §5.48 A. Motion to Withdraw Plea
- §5.49 1. Motions Prior to Judgment
- §5.50 a. Procedure
- §5.51 b. Grounds
- §5.52 c. Immigration Consequences
- §5.53 2. Motions After Judgment
- §5.54 a. Procedure
- §5.55 b. Grounds
- §5.56 c. Immigration Consequences
- §5.57 B. Motion to Vacate for Violation of State Advisal Statute
- §5.58 1. Procedure
- §5.59 2. Grounds
- §5.60 3. Immigration Consequences
- §5.61 C. Nonstatutory Motion to Vacate
- §5.62 1. Nature of the Motion
- §5.63 2. Procedure
- §5.64 3. Immigration Consequences
- §5.65 D. Direct Appeal
- §5.66 1. Procedural Requirements
- §5.67 2. Filing a Late Notice of Appeal
- §5.68 3. Attacking a Waiver of Appeal
- §5.69 4. Immigration Consequences
- §5.70 a. Effect of Reversal of Conviction
- §5.71 b. Finality Of Decision
- §5.72 E. Habeas Corpus and Post-Conviction Relief Petitions
- §5.73 1. General Requirements for Issuance
- §5.74 2. Timeliness
- §5.75 3. The Requirement of Custody
- §5.76 4. Procedure
- §5.77 5. Immigration Consequences
- §5.78 F. Coram Nobis
- §5.79 1. Procedure
- §5.80 2. Grounds
- §5.81 3. Immigration Consequences
- §5.82 G. Audita Querela
- § 6 Grounds for Vacating the Conviction
- §6.1 I. Geography of the Field
- §6.2 II. Violations of the Right to Counsel
- §6.3 A. Denial of Counsel
- §6.4 1. Representation by Non-Counsel
- §6.5 2. Invalid Waiver of Right to Counsel
- §6.6 3. Refusal to Allow Self-Representation
- §6.7 B. Ineffective Assistance of Counsel
- §6.8 1. Generally - Deficient Performance and Prejudice
- §6.9 2. Failure to Conduct Competent Investigation of the Facts
- §6.10 3. Failure to Research the Law
- §6.11 4. Failure to Advise the Defendant of the Elements and Defenses
- §6.12 5. Failure to Advise the Defendant of Constitutional Rights at Plea the Plea
- §6.13 6. Failure to Assist the Defendant to Withdraw
- §6.14 7. Failure to Consult the Defendant about an Appeal
- §6.15 8. Ineffective Assistance of Counsel on Appeal
- §6.16 C. Failure to Protect the Defendant Against the Immigration Consequences of the Plea
- §6.17 1. Deficient Performance
- §6.18 2. Misadvice vs. Failure to Advise
- §6.19 3. Prejudice
- §6.20 4. The Collateral Consequences Argument
- §6.21 a. California Rejects the Collateral
- §6.22 b. Further Arguments and Authority
- §6.23 5. Affirmative Misadvice May Circumvent the Collateral Consequences Argument
- §6.24 6. Failure to Investigate Mitigating Facts
- §6.25 a. Basic Approach
- §6.26 b. Sample Argument
- §6.27 7. Failure to Investigate the Immigration Consequences of Trial
- §6.28 D. Conflict of Interest
- §6.29 1. Multiple Representation of Conflicting Interests
- §6.30 2. Conflict of Interest in Failing to Raise Counsel’s Own Ineffectiveness
- §6.31 3. Conflict Between Defendant and Counsel
- §6.32 III. Invalid Guilty Pleas
- §6.33 A. Ineffective Waiver of Jury Trial
- §6.34 1. The Failure to Explain the Nature of the Right to a Jury Trial
- §6.35 2. Involuntary Waiver of the Right to a Jury Trial
- §6.36 B. Ineffective Waiver of Right to Remain Silent
- §6.37 C. Ineffective Waiver of Confrontation
- §6.38 D. Failure to Establish Factual Basis
- §6.39 E. Failure to Inform Defendant of the Nature of the Offense
- §6.40 F. Failure to Inform Defendant of Consequences of Plea
- §6.41 G. Breach of Plea Bargain
- §6.42 H. Promissory Estoppel
- §6.43 I. Failure to Disclose Plea Agreement on the Record
- §6.44 J. Coercion to Enter Plea
- §6.45 K. Failure to Establish Mental Competence to Enter Plea
- §6.46 L. Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate
- §6.47 IV. Violations of the Right to an Interpreter
- §6.48 A. The Right to an Interpreter in Criminal Proceedings
- §6.49 B. Grounds for Invalidating Conviction for Violation of the Right to an Interpreter
- §6.50 V. Other Grounds For Vacating Guilty Pleas
- §6.51 A. Jurisdictional Defects
- §6.52 B. Newly Discovered Evidence
- §6.53 C. Prosecution Withholding of Exculpatory Evidence
- §6.54 D. Actual Innocence
- §6.55 E. Failure of Charge to State All Elements of Offense
- §6.56 F. Other Grounds to Vacate Guilty Pleas
- §6.57 VI. State Advisal Statute Violations
- § 7 Vacating or Reducing the Sentence
- §7.1 I. Introduction
- §7.2 II. Immigration Consequences of Sentence
- §7.3 A. Definition of "Sentence Imposed"
- §7.4 B. Length of "Sentence Imposed"
- §7.5 1. Aggravated Felonies Requiring 1-Year "Sentence Imposed"
- §7.6 a. The 1-Year List
- §7.7 b. Reduction of Sentence Below 1 Year
- §7.8 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less
- §7.9 a. Petty Offense Exception Generally
- §7.10 b. Effects of Petty Offense Exception in Specific Immigration Contexts
- §7.11 3. A Noncitizen Becomes Inadmissible if Convicted of 2 or More Offenses for Which the Aggregate Sentences to Confinement Totaled 5 Years or More
- §7.12 4. Mandatory Detention is Triggered if a Noncitizen is Deportable for 1 Conviction of a Crime of Moral Turpitude for Which a Sentence of 1 Year or More Has Been Imposed
- §7.13 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
- §7.14 6. A Conviction is Considered a Misdemeanor, for Purposes of Adjustment of Status, if the State Designates It as a Misdemeanor and the Sentence Imposed is 1 Year or Less, Even If the Maximum Sentence is Greater
- §7.15 C. Length of Actual Confinement
- §7.16 1. To Be Eligible for the Waiver of Deportability Under Former INA 212(c), the Noncitizen Must Avoid Service of 5 Actual Years or More in Custody for Aggravated Felony Conviction(s)
- §7.17 2. A Noncitizen is Disqualified from Showing Good Moral Character if Actually Confined as a Result of Criminal Convictions for a Total of 180 Days or More
- §7.18 3. Situations That Require Good Moral Character
- §7.19 D. Naturalization May Not Be Granted if the Applicant is Currently on Probation or Parole
- §7.20 E. The Sentencing Judgment, Which Forms Part of the “Record of Conviction,” Can Lead to Adverse Immigration Consequences
- §7.21 F. Immigration Consequences of Reducing the Level of the Offense from Felony to Misdemeanor
- §7.22 1. The Most Recent Sentence Determines the Immigration Consequences of the Conviction
- §7.23 2. The Felony/Misdemeanor Distinction in Immigration Law
- §7.24 3. Some Crimes of Violence are Aggravated Felonies Only if the Conviction is a Felony
- §7.25 4. A State First-Offense Controlled Substances Possession Conviction Must Be a Felony in Order to Be Considered an Aggravated Felony
- §7.26 5. Felony-Misdemeanor Offenses that are Treated As, or Reduced To Misdemeanor Offenses Do Not Constitute Aggravated Felonies as Long as They Would Be Misdemeanors Under Federal Law
- §7.27 6. 1 Felony Conviction Disqualifies an Immigrant from Eligibility for a Number of Immigration Benefits
- §7.28 a. The Legalization Program
- §7.29 b. "Special Agricultural Worker" (SAW) Legalization Program
- §7.30 c. Family Unity Program
- §7.31 d. Temporary Protected Status
- §7.32 e. Political Asylum
- §7.33 f. Restriction on Removal, Formerly Withholding of Deportation
- §7.34 7. Effect of a Felony Conviction on Criminal Sentences
- §7.35 G. Reduction of Maximum Sentence To or Below 1 Year
- §7.36 1. Petty Offense Exception United States Permanent Residents Non-Lawful Permanent Residents
- §7.37 a. Admissibility; the Ability to Enter the United States
- §7.38 b. Cancellation of Removal for Lawful Permanent Residents
- §7.39 c. Cancellation of Removal for Non-Lawful Permanent Residents
- §7.40 d. Good Moral Character
- §7.41 e. Lawful Permanent Resident Status
- §7.42 f. Naturalization
- §7.43 g. Registry
- §7.44 h. Suspension of Deportation
- §7.45 i. Violence Against Women Act
- §7.46 j. Voluntary Departure at End of Removal Proceedings
- §7.47 k. Reduction from Felony to Misdemeanor Changes Maximum Sentence to 1 Year, Qualifying for the Petty Offense Exception
- §7.48 2. Reduction of Maximum Sentence Below 1 Year to Avoid Removal for 1 Conviction of a Crime of Moral Turpitude
- §7.49 3. Alphabetical Checklist of Applicable Immigration Contexts
- §7.50 III. Obtaining an Effective Order Vacating or Reducing a Sentence
- §7.51 A. Vacating the Conviction Vacates the Sentence
- §7.52 B. Vacating the Original Sentence on a Ground of Legal Invalidity
- §7.53 C. Obtaining an Order Modifying the Original Sentence
- §7.54 D. Modifying a Sentence Under a State Rehabilitative Statute
- §7.55 IV. Procedural Vehicles for Vacating or Reducing the Sentence
- §7.56 A. Direct Appeal from Sentence
- §7.57 B. Petition for Writ of Habeas Corpus
- §7.58 C. Non-Statutory Motion to Vacate Sentence
- §7.59 D. Petition for a Writ of Error Coram Nobis
- §7.60 E. Motion to Correct Void Sentence
- §7.61 F. Commutation or Correction of Sentence
- §7.62 G. Motion to Modify Probationary Sentence
- §7.63 H. Motion to Shorten Probation
- §7.64 I. Shortening Parole
- §7.65 V. Grounds to Vacate the Sentence
- §7.66 A. Choice of Ground
- §7.67 1. Any Ground Will Do
- §7.68 2. Immigration-Related Grounds
- §7.69 3. Non-Immigration Related Grounds
- §7.70 B. Relationship Between Grounds to Vacate Convictions and Grounds to Vacate Sentence
- §7.71 1. Vacating Conviction Vacates Sentence
- §7.72 2. Many Conviction Grounds Apply at Sentence
- §7.73 3. Court Must Reaffirm Validity of Plea at Time of Sentence
- §7.74 C. Violations of the Right to Counsel
- §7.75 1. The Right to Counsel
- §7.76 2. Ineffective Assistance of Counsel
- §7.77 3. Immigration-Related Ineffective Assistance
- §7.78 a. Failure to Investigate the Facts
- §7.79 b. Failure to Present Mitigating Information
- §7.80 c. Failure to Research the Law
- §7.81 d. Failure to Correct Error of Fact or Law
- §7.82 e. Failure to Assist in Withdrawal of Plea
- §7.83 f. Failure to Advise About Appeal
- §7.84 4. Examples of IAC Concerning Immigration Consequences of Sentence
- §7.85 a. Moral Turpitude Offenses
- §7.86 b. Length of Sentence of Incarceration
- §7.87 c. Aggravated Felonies
- §7.88 d. Anticipating Post-Conviction Relief
- §7.89 e. Other Examples
- §7.90 5. Other Examples
- §7.91 D. Substantive Constitutional Guarantees
- §7.92 1. Cruel or Unusual Punishment
- §7.93 2. Unconstitutionally Vague Sentence Statute
- §7.94 3. Ex Post Facto Violations
- §7.95 4. Vindictive Sentencing
- §7.96 5. Withholding of Exculpatory Evidence
- §7.97 6. Breach of Plea Agreement at Sentence
- §7.98 7. Other Guarantees
- §7.99 E. Due Process Rights in the Sentencing Hearing
- §7.100 1. Right to Jury Determination of Facts Increasing Maximum Sentence
- §7.101 2. Judicial Awareness of Discretion
- §7.102 3. Notice and Opportunity to Be Heard
- §7.103 4. Allocution
- §7.104 5. Right to Accurate Information
- §7.105 6. Right Against Use of Unreliable Hearsay
- §7.106 7. Right Against Use of Improper Evidence
- §7.107 8. Improper Victim Impact Evidence
- §7.108 9. Prosecutorial Misconduct
- §7.109 10. Right to Individualized Consideration
- §7.110 11. Mental Incompetence at Sentence
- §7.111 12. Judicial Bias or Misconduct
- §7.112 13. Exclusion of Relevant Information
- §7.113 14. Other Due Process Violations
- §7.114 F. Other Sentence Defects
- §7.115 1. Invalid Prior Conviction
- §7.116 2. Illegal Sentence
- §7.117 3. Lack of Presentence Report
- §7.118 4. Unreasonable Delay in Imposition of Sentence
- §7.119 5. Other Sentence Defects
- §7.120 VI. Post-Conviction Reduction of Felony to Misdemeanor
- §7.121 A. Motion to Reduce a Felony to a Misdemeanor
- §7.122 1. Basic Requirements
- §7.123 2. Definition of Reducible Offenses
- §7.124 3. The Required Sentence
- §7.125 a. Generally
- §7.126 b. A Sentence to State Prison — Even if Execution Is Suspended — Disqualifies the Defendant from Reducing the Offense to a Misdemeanor
- §7.127 4. Standard for Granting the Reduction
- §7.128 5. Procedure
- §7.129 6. Timing of the Motion of Probation
- §7.130 7. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Termination
- §7.131 8. The Court's Jurisdiction to Grant a Motion to Reduce Continues After the Conviction Has Been Expunged
- §7.132 9. Review of Grant or Denial of Motion to Reduce
- §7.133 VII. Motion to Reduce a Misdemeanor to an Infraction
- §7.134 A. Definition of Misdemeanor Conviction
- §7.135 B. Immigration Contexts in Which the Client Benefits from Reducing Misdemeanors to Infractions
- §7.136 C. Criminal Benefits of Reducing Misdemeanors to Infractions
- §7.137 D. Motion Under California Penal Code 17(d) to Reduce Certain Misdemeanors to Infractions
- § 8 State Rehabilitative Relief
- §8.1 I. Introduction
- §8.2 II. Immigration Effects of State Rehabilitative Relief
- §8.3 A. General Rule: State Rehabilitative Relief Does Not Eliminate the Immigration Consequences of a Conviction
- §8.4 B. Exception: Federal First Offender Act
- §8.5 C. Exception: State FFOA Analogues in the Ninth Circuit
- §8.6 1. Qualifying Offenses
- §8.7 2. Qualifying Types of Relief
- §8.8 3. Disqualification from Effectiveness of Relief
- §8.9 4. Multiple Simultaneous Qualifying Convictions
- §8.10 D. Exception: Foreign FFOA Analogues in the Ninth Circuit
- §8.11 E. Prospects for this Rule in Other Circuits
- §8.12 F. Even Where State Rehabilitative Relief is Effective to Eliminate a Conviction, the Underlying Conduct Can be Considered as a Negative Discretionary Factor
- §8.13 III. Protecting the Client Before Relief is Available
- §8.14 A. Immigration Court
- §8.15 1. Obtaining a Continuance
- §8.16 2. Seeking Appellate Review
- §8.17 B. Criminal Court
- §8.18 1. Avoiding a Final Conviction
- §8.19 2. Expediting Rehabilitative Relief
- §8.20 IV. Rehabilitative Relief in Different Jurisdictions
- §8.21 V. Judicial Recommendations Against Deportation
- §8.22 A. Immigration Effects
- §8.23 1. Deportation Grounds Excused
- §8.24 2. Varieties of Immigration Effects
- §8.25 3. Foreign JRADs Ineffective
- §8.26 4. Continuing Validity of Pre-1990 JRADs
- §8.27 B. Procedure
- §8.28 1. Notice to Immigration Authorities
- §8.29 2. Timing of Effective JRAD
- §8.30 C. Ineffective Assistance of Counsel in Failing to Seek JRAD
- §8.31 1. Ground to Vacate Sentence
- §8.32 2. Remedy to Allow Timely JRAD
- §8.33 D. Retroactivity of Repeal of JRAD Authority
- §8.34 1. Effective Date of Repeal
- §8.35 2. Congressional Intent in Light of St. Cyr
- §8.36 3. Ex Post Facto Argument
- §8.37 E. Government May Not Attack Validity of JRAD in Immigration Court
- §8.38 VI. Executive Pardon
- §8.39 A. Immigration Effects of a Pardon
- §8.40 1. Qualifying Deportation Grounds
- §8.41 2. Immigration Benefits
- §8.42 3. Nature of Effective Pardon
- §8.43 4. Foreign Pardons Ineffective
- §8.44 B. Experience in Particular States
- § 9 Practical Considerations
- §9.1 I. Introduction
- §9.2 II. Dealing with Bias Against Immigrants
- §9.3 A. Defeating Bias Against Clients on the Basis of National Origin
- §9.4 B. Successful Negotiation Using the Immigration Consequences of the Conviction
- §9.5 1. The Legislature has Determined it is Proper for Prosecution and Defense to Renegotiate a Criminal Disposition in Light of the Immigration Consequences
- §9.6 2. The Proposed Solution is an Appropriate Exercise of Prosecutorial Discretion in the Present Case
- §9.7 3. Sample Negotiation Script
- §9.8 C. The Client Should Receive the Benefit of All Reasonable Doubts in These Cases
- §9.9 1. The Immigrant Receives the Benefit of All Reasonable Doubts
- §9.10 2. The Criminal Defendant Receives the Benefit of All Reasonable Doubts
- §9.11 III. Appointment of Counsel in Writ Proceedings
- §9.12 IV. Interpreters
- §9.13 A. Selecting an Interpreter
- §9.14 B. Using an Interpreter in Court
- §9.15 V. Obtaining a Client’s Presence in Court
- §9.16 A. Clients in Immigration Custody
- §9.17 B. Clients Who Have Already Been Deported
- §9.18 C. Clients Who Have Returned Illegally
- §9.19 VI. Obtaining Evidence from the Client After Deportation
- §9.20 VII. Finding Expert Post-Conviction Counsel
- §9.21 A. Finding Post-Conviction Counsel
- §9.22 B. Finding Immigration Counsel
- § 10 After the Conviction Has Been Vacated
- §10.1 I. Introduction
- §10.2 II. Documenting the Victory
- §10.3 A. Obtaining Certified Copies of the Order Vacating the Conviction or Sentence
- §10.4 B. Correcting FBI Criminal History Reports
- §10.5 C. Correcting State Criminal History Records
- §10.6 III. Procedural Rules Governing the New Prosecution
- §10.7 A. The Client Cannot be Punished for Exercising the Right to Vacate the Conviction
- §10.8 B. The Client Must Be Given Full Credit for All Time Served as a Result of the Original Conviction
- §10.9 C. The Original Judge May be Disqualified at This Point, Even if a Challenge Has Previously Been Employed
- §10.10 D. The Statute of Limitations May Prevent Filing of New Charges at This Point, Even if They Could Lawfully Have Been Filed at the Time of the Original Disposition
- §10.11 IV. Obtaining a New Outcome that Minimizes Adverse Immigration Consequences
- §10.12 A. Some Safer Alternative Dispositions
- §10.13 B. Plea Negotiations
- §10.14 C. Documenting the Disposition for Immigration Counsel
- §10.15 V. Reopening Removal Proceedings
- §10.16 A. Before Deportation Has Occurred
- §10.17 1. Prior to Removal Order
- §10.18 2. After the Immigration Judge Issues a Removal Order.
- §10.19 3. During Appeal
- §10.20 4. Motion to Reopen After BIA Dismissal of Appeal
- §10.21 5. During Petition for Review Proceedings
- §10.22 B. After Deportation Has Occurred
- §10.23 1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction Has Been Vacated
- §10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated
- §10.25 3. Federal Habeas Corpus Seeking Readmission After the Conviction Has Been Vacated
- §10.26 4. Collateral Attack of Deportation Order Upon Prosecution for Illegal Re-entry.
- Appendix A1 Post-Conviction Evaluation Checklist
- Appendix A2 AEDPA Statute of Limitations Worksheet
- Appendix A3 Intake Form
- Appendix A4 Basic Immigration Status Questionnaire
- Table of Authorities
- Index
- About the Authors
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