Aggravated Felonies

In Matter of Pickering,[62] the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[63]  This decision expressly states it does not change the pre-existing rule that a vacatur which is based on a ground of legal invalidity existing at the time the conviction first arose is effective in eliminating the immigration consequences of a criminal conviction.[64]

To be effective in eliminating the immigration consequences of a conviction, post-conviction counsel must obtain a court order in the original criminal case vacating or setting aside the conviction that meets a number of specific requirements.

[62] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

[63] Id. at 625.

[64] For an excellent analysis of Pickering, see Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103 (July 1, 2003).  For a description of effective orders to vacate convictions, see N. Tooby, Effective Post-Conviction Relief: Eliminating Criminal Convictions for Immigration Purposes, in II AILA Handbook on Immigration and Nationality Law – Advanced Practice (2001-2002); N. Tooby, Criminal Defense of Immigrants § § 10.2-10.7 (3d ed. 2003); N. Tooby, Aggravated Felonies § § 7.2, et seq. (2003).  See also Immigration Law and Crimes § § 4.2, 4.20 (2003).