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POST-CONVICTION RELIEF FOR IMMIGRANTS was published on February 1, 2004 and is updated monthly on these pages.
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Chapter 1 : Introduction and Overview
§ 1.1 I. Origins of the Problem § 1.4 IV. Overview of Post-Conviction Relief
Chapter 2 : Evaluating the Chances of Obtaining Post-Conviction Relief
§ 2.27 c. Attacking State Convictions § 2.28 2. Time Limits Within Which Actions for State
Chapter 3 : Investigating the Case
§ 3.3 A. Special Considerations § 3.5 III. Obtaining Information About Immigration Status § 3.6 A. Check for Unknown U.S. Citizenship § 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 § 3.14 VII. Verifying the Immigration Situation: INS Records, FOIA Requests, and Analysis § 3.15 A. Filing an FOIA Request § 3.17 VIII. Verifying Exact Criminal History: Criminal Records and “Rap Sheets” § 3.18 A. Obtaining the Client’s FBI Criminal Record § 3.27 XIII. Ineffective Assistance: Interviewing Original Defense Counsel
Chapter 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 § 4.10 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
Chapter 5 : Vehicles for Vacating a Conviction
§ 5.5 3. Choosing a Vehicle that Works § 5.6 4. Timing of Post-Conviction Relief § 5.9 2. Obtaining the Relief: General Procedure § 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 § 5.19 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 § 5.25 b. Finality Of Decision § 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 § 5.41 D. Coram Nobis § 5.42 1. Procedure § 5.43 2. Grounds § 5.44 3. Immigration Consequences § 5.47 III. State Vehicles for Vacating a Conviction § 5.50 a. Procedure § 5.52 c. Immigration Consequences § 5.57 B. Motion to Vacate for Violation of State Advisal Statute § 5.59 2. Grounds § 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 § 5.71 b. Finality Of Decision § 5.73 1. General Requirements for Issuance § 5.74 2. Timeliness § 5.75 3. The Requirement of Custody § 5.78 F. Coram Nobis § 5.79 1. Procedure § 5.80 2. Grounds § 5.82 G. Audita Querela
Chapter 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 § 6.7 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 § 6.22 b. Further Arguments and Authority § 6.24 6. Failure to Investigate Mitigating Facts § 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 § 6.31 3. Conflict Between Defendant and Counsel § 6.32 III. Invalid Guilty Pleas § 6.34 1. The Failure to Explain the Nature of the Right to a Jury Trial § 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 § 6.45 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 § 6.51 A. Jurisdictional Defects § 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
Chapter 7 : Vacating or Reducing the Sentence
§ 7.2 II. Immigration Consequences of Sentence § 7.3 A. Definition of "Sentence Imposed" § 7.6 a. The 1-Year List § 7.8 2. Petty Offense Exception to Inadmissibility Requires Sentence Imposed of 6 Months or Less § 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 § 7.24 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 § 7.35 G. Reduction of Maximum Sentence To or Below 1 Year § 7.36 1. Petty Offense Exception United States Permanent Residents Non-Lawful Permanent Residents § 7.48 2. Reduction of Maximum Sentence Below 1 Year to Avoid Removal for 1 Conviction of a Crime of Moral Turpitude § 7.50 III. Obtaining an Effective Order Vacating or Reducing a Sentence § 7.51 A. Vacating the Conviction Vacates the Sentence § 7.56 A. Direct Appeal from Sentence § 7.59 D. Petition for a Writ of Error Coram Nobis § 7.65 V. Grounds to Vacate the Sentence § 7.75 1. The Right to Counsel § 7.76 2. Ineffective Assistance of Counsel § 7.78 a. Failure to Investigate the Facts § 7.79 b. Failure to Present Mitigating Information § 7.84 4. Examples of IAC Concerning Immigration Consequences of Sentence § 7.90 5. Other Examples § 7.92 1. Cruel or Unusual Punishment § 7.94 3. Ex Post Facto Violations § 7.95 4. Vindictive Sentencing § 7.100 1. Right to Jury Determination of Facts Increasing Maximum Sentence § 7.103 4. Allocution § 7.104 5. Right to Accurate Information § 7.106 7. Right Against Use of Improper Evidence § 7.109 10. Right to Individualized Consideration § 7.112 13. Exclusion of Relevant Information § 7.113 14. Other Due Process Violations § 7.115 1. Invalid Prior Conviction § 7.116 2. Illegal Sentence § 7.119 5. Other Sentence Defects
Chapter 8 : State Rehabilitative Relief
§ 8.1 I. Introduction § 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 § 8.8 3. Disqualification from Effectiveness of Relief § 8.11 E. Prospects for this Rule in Other Circuits § 8.15 1. Obtaining a Continuance § 8.20 IV. Rehabilitative Relief in Different Jurisdictions § 8.21 V. Judicial Recommendations Against Deportation § 8.32 2. Remedy to Allow Timely JRAD § 8.33 D. Retroactivity of Repeal of JRAD Authority § 8.36 3. Ex Post Facto Argument § 8.38 VI. Executive Pardon § 8.39 A. Immigration Effects of a Pardon § 8.43 4. Foreign Pardons Ineffective § 8.44 B. Experience in Particular States
Chapter 9 : Practical Considerations
§ 9.4 B. Successful Negotiation Using the Immigration Consequences of the Conviction § 9.15 V. Obtaining a Client’s Presence in Court § 9.17 B. Clients Who Have Already Been Deported § 9.21 A. Finding Post-Conviction Counsel
Chapter 10 : After the Conviction Has Been Vacated
§ 10.2 II. Documenting the Victory § 10.6 III. Procedural Rules Governing the New Prosecution § 10.11 IV. Obtaining a New Outcome that Minimizes Adverse Immigration Consequences § 10.15 V. Reopening Removal Proceedings § 10.16 A. Before Deportation Has Occurred § 10.18 2. After the Immigration Judge Issues a Removal Order. § 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.
Appendices
Appendix A1: Post-Conviction Evaluation Checklist
Appendix A2: AEDPA Statute of Limitations Worksheet
Appendix A3: Intake Form
Appendix A4: Basic Immigration Status Questionnaire
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