quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
To prevent a “conviction,” counsel should try to set up a disposition so that a notice of
appeal can be filed. If an appeal is pending and if the conviction is the only basis for
deportation – e.g., if your client is a lawful permanent resident who does not have a deportable
conviction, except for the conviction on direct appeal – then either your client will not be picked
up by immigration at the conclusion of the sentence, or an immigration attorney can file a motion
to terminate deportation proceedings if the client is picked up and put in removal proceedings.
The defendant has the right to file a notice of appeal after a jury or court trial, a
submission on a preliminary examination transcript or police report, or after a plea of guilty or
no contest after a suppression motion per Penal Code Section 1538.5. This “slow plea” is a
particularly potent strategy, especially for a defendant likely to receive either a jail sentence or,
perhaps, a short prison sentence because an appeal can be still pending at the time of the
defendant’s release from jail or prison in such cases. In practice a date-stamped copy of the
appeal may suffice to get a noncitizen who is being detained solely on the basis of the
conviction.
The BIA recently held that a late-filed appeal will not prevent a conviction from having
immigration effect. Nevertheless, as a general matter the traditional requirement that a
conviction must be final still applies. 50 The Ninth Circuit has not considered the late-filed
appeal issue. See Chapter 8, Defending Immigrants in the Ninth Circuit for further information.
I. Vacation of Judgment for Cause
The BIA will not question the validity of a state order vacating a conviction for cause.
When a court acting within its jurisdiction vacates a judgment of conviction, the conviction no
longer constitutes a valid basis for deportation or exclusion. 51
The conviction must have been vacated for cause, not merely for hardship or
rehabilitation, however. In Matter of Pickering the BIA held that a conviction is not eliminated
for immigration purposes if the court vacated it for reasons “solely related to rehabilitation or
immigration hardships, rather than on the basis of a procedural or substantive defect in the
underlying criminal proceedings.” 52 However, an actual legal defect that has some relationship
to immigration will be given effect, for example ineffective assistance of counsel based on a
failure to adequately advise the defendant regarding immigration consequences. See Chapter 8,
Defending Immigrants in the Ninth Circuit for further information on appeals. See also Tooby,
California Post-Conviction Relief for Immigrants at www.nortontooby.com.
50 See Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) and Practice Advisory by Manuel Vargas,
“Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu” at www.immigrantdefenseproject.org.
51 Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Rodriguez-Ruiz, Int. Dec. 3436 (BIA 2000).
52 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
Immigrant Legal Resource Center N-35