Post-Conviction Relief

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Post-Conviction Relief
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How to Defend Immigrants Charged with Drug Offenses, Including New Penal Code § 372.5
Crimes
Post-Conviction Relief
Prosecutors
Removal Defense
U Visa/T Visa/VAWA
Drug offenses cause the harshest, most disproportionate immigration penalties of any offense. Criminal defenders and immigration advocates need information to work aggressively to defend immigrant clients. This advisory provides strategies to avoid a drug conviction, including how and when to use Penal Code § 372.5 (2023), along with practice tips, resources, and arguments to support negotiating for an immigration neutral plea or disposition in criminal court.

Post-Conviction Relief

The Immigrant Legal Resource Center (ILRC) is one of only a few technical assistance organizations nationally and in California with expertise on immigrant post-conviction relief, including clean slate and other record clearance remedies. Immigrants with criminal convictions are more vulnerable than any other group to being a target for deportation and make up the overwhelming majority of deportations that occur in any year.

The ILRC works to protect the rights of individuals who have come into contact with the criminal justice system through policy and advocacy efforts, numerous in-person and webinar trainings, case-specific assistance, and our pro bono immigrant post-conviction relief project.

For people whose convictions effectively close all doors to immigration relief, vacating the conviction in criminal court is the only way to preserve a chance of remaining in the United States. The underlying convictions are frequently unlawful. Commonly, the defect lies with a noncitizen defendant’s failure to understand or have been advised or defended against a conviction’s immigration consequences. Recognizing that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants,” the Supreme Court held in Padilla v. Kentucky that a defense counsel’s failure to provide this immigration advice renders a conviction unconstitutional.”

Latest Resources

Practice Advisory
Resources

EOIR Regulation Limits Retroactivity of Matter of Thomas & Thompson Regarding Sentence Modifications
Publication Date
11/06/2024
On October 25, 2019, the Attorney General published Matter of Thomas & Thompson holding that adjudicators could only recognize a sentence modification for immigration purposes where the sentence was vacated due to procedural or substantive defect as defined in Matter of Pickering. It was not clear whether this holding was retroactive. Under new DOJ regulations it is now clear that Matter of Thomas & Thompson is not retroactive. Adjudicators will recognize a sentence modification as vacating the sentence for immigration purposes where: (1) the person filed for the sentence modification on or before October 25, 2019; (2) the person relied on the availability to seek a sentence modification where the conviction date was on or before October 25, 2019; (3) there was a clerical or typographical error in the sentence regardless of the date of entry of the sentence; or (4) where the sentence was vacated due to a procedural or substantive defect in the sentencing - regardless of when the sentence modification was filed.
FAQs & Explainers
Resources

Worksheet: California Post-Conviction Relief for Immigrants
Publication Date
05/22/2024
Thousands of noncitizens in California are at risk of removal because they have criminal convictions that were unlawfully imposed. California law provides several ways to eliminate these convictions with post-conviction relief (PCR). The challenge is that there are not enough PCR experts to meet the need, especially for low-income immigrants.
FAQs & Explainers
Resources

Options for Survivors in Criminal Court
Publication Date
01/09/2024
Criminal Convictions can have serious consequences on peoples’ lives – especially non-citizens who wish to stay in the United States. Many immigration benefits have criminal bars, meaning that certain convictions will prevent you from getting a lawful immigration status, like permanent residence (green card). This Community Explainer offers some options for those who have had certain convictions related to domestic violence or human trafficking, with insights about how to define these crimes, some example scenarios, and explanations about the benefits of a legal tool called a “vacatur.”
Practice Advisory
Resources

How to Analyze a Crim-Imm Case: Four Questions to Identify Case Goals
Publication Date
03/20/2023
Immigration and crimes, or “crim-imm,” can be challenging.  Both immigration and criminal law are difficult on their own. To do crim-imm work, advocates who are expert in one area must learn at least something about law and procedure in the other. It can be hard to know where to start the analysis.
 
This advisory provides a step-by-step approach to help advocates analyze a case and identify goals. It can be used by criminal defense counsel, immigration advocates, and post-conviction relief counsel. It is not a substitute for consulting with a crim/imm expert, but using it should increase your expertise and help you to better discuss the analysis with the client, argue it to the judge or official, or negotiate with the other side.
FAQs & Explainers
Resources

In the Weeds: A Deep Dive on Cannabis & Immigration
Publication Date
03/01/2023
Cannabis legalization has long been a growing theme across the United States, having a place in virtually every recent election cycle and in policy debates related to the federal government’s role in restricting its access, sale, use, and distribution. With many states moving to legalize cannabis for recreational use and with the Biden administration recently deciding to pardon individuals for certain federal convictions related to its possession, it may seem as though we are coming to the end of the cannabis prohibition era. Unfortunately, not only is that moment yet to arrive, but the dangers for immigrants, in particular, could not be higher. This downloadable guide walks through the current intersection of cannabis, criminal, and immigration law and also shares insights about what a pathway out of prohibition could look like.
Practice Advisory
Resources

Fact Sheet on Penal Code § 372.5, effective Jan. 1, 2023
Publication Date
11/29/2022
his fact sheet describes new Cal. Penal Code 372.5 (AB 2195). As of January 1, 2023, a California defendant who is charged with any of several drug offenses, from infractions to felonies, can ask for the drug charge/s to be dismissed and instead to plead guilty to being a “public nuisance” (Penal Code § 370). Section 372.5 provides that in this circumstance, the public nuisance offense is punishable as an infraction, a misdemeanor, or a “wobbler” offense, depending on the offense level of the drug charge that was dropped. The defense must decide to ask, and the prosecution must agree, to go forward with Penal Code 370/372.5.
Practice Advisory
Resources

New Options for Survivors of Trafficking and Domestic Violence
Publication Date
11/02/2022
Survivors of human trafficking and of domestic or sexual violence often are charged and convicted of offenses that arose as a direct result of their exploitation. For noncitizens, the criminal record can cause deportation or destroy their eligibility for humanitarian visas. In the last five years, California has enacted multiple laws to avoid this injustice in criminal court, including a defense to a criminal charge and a vehicle to vacate a past conviction for survivors who were coerced to commit the offense, or in other cases mitigation of sentence. This advisory describes the new criminal laws and their immigration effect, so that criminal defenders and immigration and survivor advocates are aware of these options.
Practice Advisory
Resources

How to Defend Immigrants Charged with Drug Offenses, Including New Penal Code § 372.5
Drug offenses cause the harshest, most disproportionate immigration penalties of any offense. Criminal defenders and immigration advocates need information to work aggressively to defend immigrant clients. This advisory provides strategies to avoid a drug conviction, including how and when to use Penal Code § 372.5 (2023), along with practice tips, resources, and arguments to support negotiating for an immigration neutral plea or disposition in criminal court.
Archive
Resources

Defending 1473.7 Vacaturs: Merits, Amicus, and Sample Briefs
Publication Date
07/14/2022
In 2016, California enacted California Penal Code § 1473.7, a post-conviction relief vehicle allowing people no longer in criminal custody to vacate legally defective convictions. Ever since, the ILRC has supported advocates to implement this law, including helping to defend the vacaturs from DHS attempts to erode its impact. In Arias v. Garland, a case currently pending before the Ninth Circuit, the court will decide whether 1473.7 should be given full effect, erasing the conviction for immigration purposes. The ILRC helped coordinate Mr. Arias’s amicus strategy and we offer his redacted merits brief as well as the extraordinary amicus briefs submitted in support so that they might help practitioners facing similar arguments. The briefing in the Arias case represents some of the most robust arguments for why 1473.7 vacaturs should be recognized, but we also include below the various prior briefs, advisories, and sample materials we have developed in the defense of the full reach of 1473.7.
Practice Advisory
Resources

Overview of California Post-Conviction Relief for Immigrants
Publication Date
07/12/2022
Thousands of noncitizens in California are at risk of removal or cannot qualify for immigration relief because they have unlawfully imposed criminal convictions. The good news is that there are several options under California law to eliminate these convictions for immigration purposes, using post-conviction relief (PCR).  This Advisory can help advocates to identify which of these forms of California PCR may help your client, and direct you to more resources about how to obtain it.
Practice Advisory
Resources

Practice Advisory: Post-Conviction Relief Motions to Reopen
Publication Date
06/27/2022
This advisory provides detailed instruction on how and where to file a motion to reopen for attorneys who have successfully vacated a conviction for immigration purposes and their client is now eligible for termination or a form of relief. In addition, the advisory addresses the impact of the post-departure bar and reinstatement of prior removal order on post-conviction relief motions to reopen.
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California Post-Conviction Relief Vehicles

An infographic summarizing the various California post-conviction relief vehicles, their requirements, and their immigration benefits
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Related Products

Webinar
Webinar

Disrupting Deportation – How to Effectively Vacate your Noncitizens Criminal Convictions for Immigration Purposes
Since the federal government has failed to provide immigration reform, often times the only way to prevail in immigration court is to vacate your client’s prior criminal conviction or sentence to avoid deportation or to render your client eligible for some type of relief from removal. In this webinar, you will learn how to effectively vacate convictions in criminal court to meet the required Pickering standard of “legal invalidity”. We will take a deep dive into what constitutes “prejudicial error” pursuant to recent case law. In addition, we will discuss how to use the new resentencing laws and vacaturs enacted for victims of human trafficking and domestic violence to also help our noncitizens. Lastly, you will learn best practices to defend your vacatur in immigration court.
Publication
Publication

California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes
California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes guides advocates through how to use criminal courts to erase or mitigate the immigration consequences of convictions. This accessible resource provides beginner practitioners with a clear introduction to post-conviction relief and provides experienced advocates with techniques and strategies to improve their practice using new legal tools.

This manual includes everything that a practitioner needs to know about California post-conviction relief, including how to identify when an individual may benefit from post-conviction relief, how to obtain copies of court records, choosing a vacatur vehicle, negotiating with opposing counsel, demonstrating equities, successfully litigating your case, and defending your victory in immigration court. This guide highlights the new and evolving landscape of post-conviction relief in California, discussing recent legislative reforms and how to use them to erase and mitigate the immigration consequences of crimes.

The appendix contains practical tools for every provider including post-conviction relief screening questionnaires and model motions, orders, declarations, and much more. Though this manual focuses on post-conviction relief vehicles available in California, the strategies and suggestions are applicable to post-conviction relief practices across the country.
Webinar
Webinar

Disrupting Deportation: How to Effectively Vacate Convictions for Immigration Purposes
In this webinar, you will learn how to effectively vacate convictions in criminal court to meet the required Pickering standard of “legal invalidity”. We will discuss whether recent resentencing laws and vacaturs enacted for victims of human trafficking and domestic violence meet the Pickering standard. Lastly, we will discuss how to effectively defend your vacatur against attacks by ICE and DHS.
Webinar
Webinar

FOIA
Level: IntermediateThis webinar will discuss FOIA requests in immigration cases and provide tips for filing FOIA requests with DHS, including USCIS, OBIM, ICE and CBP. Researching clients’ case histories may become particularly important if any of the proposed legalization bills are enacted.
Video
Video

How a Private/Nonprofit Partnership Can Help Immigrants Obtain Post-Conviction Relief
This webinar will highlight an innovative pro bono model that ensures every immigrant has their full due process rights protected and no person is deported on the basis of an unconstitutional conviction. Led by Rose Cahn from the Immigrant Legal Resource Center and Josh Gresham from Latham & Watkins, this training will describe the Immigrant Post-Conviction Relief Project and how the nonprofit and firm partnership has brought essential relief to hundreds of immigrant clients who would face certain deportation without it.  This will be of particular interest to nonprofit immigrant legal services providers across the country, as well as to any law firms interested in engaging in a cutting-edge pro bono practice.
Colorful design.

Helping Immigrant Clients with Post-Conviction Legal Options

A guide created by the ILRC and Californians for Safety and Justice to help build the capacity of legal service providers and pro bono attorneys to provide post-conviction relief to immigrants who would face certain deportation without it.
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FOIA

Asylum
Citizenship and Naturalization
Crimes
DACA
Detention
Enforcement
Family-Based
Immigrant Youth
Post-Conviction Relief
Public Charge
Removal Defense
Temporary Protected Status
U Visa/T Visa/VAWA

Level: IntermediateThis webinar will discuss FOIA requests in immigration cases and provide tips for filing FOIA requests with DHS, including USCIS, OBIM, ICE and CBP. Researching clients’ case histories may become particularly important if any of...

Crimes & Immigration Law (LA)

Crimes
Enforcement
Post-Conviction Relief
Removal Defense

Location: Southwestern Law School, 3050 Wilshire Blvd., Los Angeles, CA 90010

Crimes & Immigration Law (SF)

Crimes
Enforcement
Post-Conviction Relief
Removal Defense

Location: University of San Francisco School of Law, 2130 Fulton Street, San Francisco, CA 94117

Defending 1473.7 Vacaturs: Merits, Amicus, and Sample Briefs
Crimes
Post-Conviction Relief
Removal Defense
In 2016, California enacted California Penal Code § 1473.7, a post-conviction relief vehicle allowing people no longer in criminal custody to vacate legally defective convictions. Ever since, the ILRC has supported advocates to implement this law, including helping to defend the vacaturs from DHS attempts to erode its impact. In Arias v. Garland, a case currently pending before the Ninth Circuit, the court will decide whether 1473.7 should be given full effect, erasing the conviction for immigration purposes. The ILRC helped coordinate Mr. Arias’s amicus strategy and we offer his redacted merits brief as well as the extraordinary amicus briefs submitted in support so that they might help practitioners facing similar arguments. The briefing in the Arias case represents some of the most robust arguments for why 1473.7 vacaturs should be recognized, but we also include below the various prior briefs, advisories, and sample materials we have developed in the defense of the full reach of 1473.7.

Overview of California Post-Conviction Relief for Immigrants
Crimes
Post-Conviction Relief
Removal Defense
Thousands of noncitizens in California are at risk of removal or cannot qualify for immigration relief because they have unlawfully imposed criminal convictions. The good news is that there are several options under California law to eliminate these convictions for immigration purposes, using post-conviction relief (PCR).  This Advisory can help advocates to identify which of these forms of California PCR may help your client, and direct you to more resources about how to obtain it.
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