Post-Conviction Immigration Relief Litigation
Appellate Advocates litigates post-conviction relief matters aimed at alleviating the immigration consequences of a criminal conviction. For a non-citizen defendant, a criminal conviction, even for a seemingly minor offense, can result in mandatory and permanent removal from the United States. Permanent separation from one’s family and home may be the most important consideration for a non-citizen defendant – far more important than even a significant prison sentence.
We assess the cases of all our non-citizen clients to determine the immigration consequences that flow from the conviction and what result needs to be obtained in order to alleviate those consequences. Sometimes, the relief available on appeal can help our client. But sometimes the relief available on appeal is not enough: we may need to try to vacate the conviction on other grounds and negotiate a different immigration-safe disposition. Or we may need to attack a different conviction (or convictions) in order to protect our client.
Some examples of case we have handled:
- In June 2013, Appellate Advocates successfully obtained post-conviction relief for a non-citizen client who faced imminent deportation to Panama. The client, a U.S. Army Veteran and 30-year resident of the United States, had pled guilty to a controlled substance offense more than twenty years ago without being told that this plea would make him subject to deportation. Appellate Advocates filed a C.P.L. 440 motion to vacate his plea on grounds of ineffective assistance of counsel, and after extensive negotiations, the Kings County District Attorney’s office agreed not to oppose his motion and to allow him to re-plead to disorderly conduct—a drop down from a D felony to a violation. As a result, the client was able to terminate his removal proceedings and remain in the United States.
- Another client, a native of Haiti, came to the United States as a legal permanent resident as a child. As a teenager and young adult, he faced challenges and early run-ins with law enforcement, and incurred two minor convictions for which he received probation. Completing his probation, he got his life on track, eventually marrying and raising a family in New York. Faced with the possibility of being deported as a result of his youthful missteps, the client and Appellate Advocates filed a motion arguing that his plea for possession of stolen property, which now rendered him deportable, should be vacated. In the fall of 2013, a justice in Brooklyn Supreme Court vacated his plea and allowed him to re-plead to an unauthorized use of a motor vehicle, which was free of immigration consequences.
- Years after Mr. S’s conviction for second-degree assault had been affirmed by the Appellate Division, Mr. S was on the cusp of being deported to his native Honduras for having committed an aggravated felony. Appellate Advocates filed a 440 motion alleging that his attorney was ineffective for failing to advise him that, had he accepted the People’s pre-trial plea offer to 6 months in jail for attempted third-degree assault, he would have been eligible for a waiver of deportation. After successful negotiations with the Kings District Attorney's Office, he was resentenced to 364 days for second-degree assault. After this new sentence, the immigration court dismissed his case.
Our post-conviction relief litigation is conducted in the context of the direct appeals to which we are assigned by the Appellate Division, Second Department, and we are also referred a limited number of cases specifically for post-conviction relief by the Immigrant Defense Project. Any client whose appeal to which we are assigned will have his or her case assessed for immigration concerns, but we welcome any inquiries by our clients if immigration is a concern.
If you are not a client of this office and you need post-conviction relief to address an immigration problem, please contact the Immigrant Defense Project by calling their hotline at (212) 725-6422.