Post-Conviction Relief

In October 2019, Attorney General Barr issued Matter of Thomas & Matter of Thompson, altering the standard for when immigration law will recognize a criminal sentencing modification. Since then, government attorneys from ICE and adjudicators from DHS and DOJ have misused and exploited the decision to incorrectly impose immigration consequences on vacated and modified past convictions and sentences. Immigrant rights advocates have pushed back by attacking this decision in the federal courts. In this amicus brief submitted to the Seventh Circuit Court of Appeals, immigration law experts directly challenge the AG's decision, arguing it is incorrect as a matter of law, is not entitled to any level of deference, and if permitted to stand cannot be applied retroactively. These arguments build on a growing body of case law refusing to offer deference to the DOJ on interpretation of immigration provisions that have both civil and criminal application. E.g., Valenzuela Gallardo v. Barr, --- F.3d ---, 2020 WL 4519085 (9th Cir. Aug. 6, 2020). Advocates challenging Thomas/Thompson in agency and court proceedings can use the arguments in this brief to attack the case on the merits and to resist its retroactive application.

This toolkit is designed for legal service organizations who want to engage pro bono attorneys in providing immigrant post-conviction relief screening and services. It contains tools to run a legal clinic to screen for crim/imm issues and post-conviction relief options, tools to perform case-specific legal analysis for noncitizens with prior convictions, and tools to place and supervise post-conviction relief motions with pro bono attorneys. Although this toolkit was designed with pro bono engagement in mind, many tools may also be useful to organizations expanding their own immigrant post-conviction relief practice. 

This toolkit will help reentry service providers expand services for noncitizens impacted by the criminal legal system. It offers an escalating service menu, starting with tools to provide general information about how a conviction can impact immigration status, advancing to tools to help clients gather information necessary for an individualized legal analysis, tools to perform that analysis, and last, tools to pursue immigration-related post-conviction relief. This toolkit was designed with reentry providers in mind, but may also be useful for immigration legal providers serving clients with prior records.

This Practice Advisory is a detailed follow-up to our prior Practice Alert on the Supreme Court's April 23, 2020 decision in Barton v. Barr, 140 S. Ct. 1442 (2020). In Barton, the Court held that committing an offense “listed in” the inadmissibility grounds at INA § 212(a)(2) triggers the "stop-time" rule for purposes of cancellation of removal eligibility, even for an admitted LPR who cannot be charged as removable under the inadmissibility grounds. This Advisory provides an in-depth discussion of the Barton decision, focusing on legal arguments to push back against overreaching DHS efforts seeking to trigger the stop-time rule, legal arguments and trial strategies to prevent conduct that did not result in conviction from triggering the stop-time rule, and considerations for criminal defense lawyers representing immigrants in criminal proceedings.

Penalties for crimes involving moral turpitude (CIMTs) are based on several factors, such as the number of CIMTs, date of commission, imposed and/or potential sentence, and whether there was a conviction versus admission of the conduct. The result is that determining whether a CIMT penalty actually applies can be quite complex.  This set of four flow charts can be used to answer four questions about a case: is the particular person deportable; inadmissible or barred from establishing good moral character; barred from applying for non-LPR cancelation; or subject to mandatory detention, based on CIMTs?

On June 5, 2020, the California Court of Appeals, Second Appellate District, published People v. Ruiz, holding that the defendant could vacate her conviction because she was not advised that her conviction will carry deportation consequences.  Rose Cahn, Mike Mehr, and appellant’s counsel, filed the above letter with the Court of Appeal, suggesting clarification that defense counsel bears the duty to advise about specific immigration consequences, and distinguishing from the court’s more general obligation to advise about potential immigration consequences.

This resource outlines some best practices for advocates and stakeholders working to expand access to, and automate, state record clearance. 

In 2016, California passed California Penal Code § 1473.7, a critical post-conviction relief vehicle for people no longer in criminal custody to move to eliminate prior convictions that violated constitutional and statutory rights to due process and effective assistance of counsel. Under decades of legal precedent, prior offenses vacated on this basis are outside the federal immigration definition of "conviction." Nevertheless, some DHS attorneys incorrectly argue that § 1473.7 vacaturs are not effective for immigration purposes. This practice advisory, a Sample Memorandum of Law and Table of BIA Cases, presents arguments and precedent for refuting DHS's arguments. 

California law requires prosecutors to consider immigration consequences when plea bargaining.  Cal. Pen. C. 1016.3(b).  This memo describes the unique duties prosecutors have when charging and negotiating DUI-related cases with DACA recipients.

Cancellation of removal under INA § 240A(a) is an important defense for lawful permanent residents who have become removable, due to criminal record or other reasons. The requirements for statutory eligibility are complex, and it is critical for advocates to understand the risks and strategies that arise from the Supreme Court’s decision on the “stop-time” rule, Barton v. Barr, --U.S.--, 140 S.Ct. 1442 (2020). This Advisory is an updated step-by-step guide to eligibility, potential arguments, and defense strategies for LPR cancellation.