This information is accessible to WDA members. For non-WDA members, including defense attorneys working on a Blake cases, please email Ali Hohman at Ali@defensenet.org
** NOTE FOR NONCITIZEN CLIENTS: If your client is not a United States citizen, see the Blake Materials for Noncitizen Clients tab below. Constitutional Padilla obligations require affirmative, accurate immigration advice in every case. Consultation with WDA’s Immigration Project, before taking action is a key step to ensure Blake-related motions and orders effectively eliminate immigration consequences (such as deportation) for your client.
Using Blake to Eliminate Immigration Consequences
A possession of a controlled substance (PCS) conviction triggers deportation and other severe immigration consequences. Effectively vacating PCS convictions pursuant to Blake’s determination that RCW 69.50.4013 is unconstitutional can eliminate these consequences. NOTE: Resentencing without vacation will not eliminate immigration consequences.
Immigration law only recognizes vacations “based on a legal or procedural defect in the original proceedings.” Blake satisfies this requirement. However, because immigration authorities, including judges, will be unfamiliar with Blake, it is imperative that defenders ensure that motions and orders not just cite to the decision, but expressly state that the PCS conviction is unconstitutional based on Blake’s holding.
Many courts are already issuing orders that include this statement. If your jurisdiction is not, it is imperative that you reach out to prosecutors and/or courts to make the necessary addition to Blake orders. NOTE: this is not a “special” accommodation particular to noncitizen cases. Rather it makes a minor, noncontroversial change in all orders.
BEST PRACTICE: Since immigration consequences are case-specific, consult with WDA’s Immigration Project, or another experienced immigration attorney, before making decisions or recommendations regarding vacating or resentencing.
Below are links to sample Blake motions and orders that contain the necessary language to make them effective for immigration purposes and can (and should) be used in all cases. (Washington law prohibits judges and prosecutors from inquiring into immigration or citizenship status and such inquiry is not necessary or relevant to Blake orders.) If you have any questions or would like WDAIP to review any proposed order to ensure its effectiveness, please contact Annie Benson or Stacy Taeuber.