(F)  Vacating the Original Sentence on a Ground of Legal Invalidity.  The long-standing rule with respect to criminal convictions is that an order vacating the conviction as legally invalid operates to eliminate the conviction’s immigration effects.[280]  The Ninth Circuit has repeatedly held that post-conviction relief vacating criminal convictions eliminates them for immigration purposes.[281]

 

            This principle has not been altered by the IIRAIRA new definition of conviction.[282]  The Ninth Circuit reaffirmed this principle, in dictum, on the basis of an INS concession that Congress did not intend to reverse the practice that a conviction as legally invalid could not serve as a basis for deportation.[283]  The court noted that:

 

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant’s guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[284]

 

The rule with respect to vacating criminal convictions is that the order must specify a ground of legal invalidity and may not be granted solely for humanitarian reasons.  The INS has asserted, and the courts have agreed, that an order vacating a conviction not for legal invalidity, but on humanitarian grounds, is ineffective to eliminate the conviction and therefore ineffective to eliminate the adverse immigration consequences.[285] 

 

Therefore, when attempting to vacate the conviction itself, it is necessary for counsel, in the words of the court in Beltran, to “identify [a] new defense or legal defect[] in the criminal proceedings” (thus providing a ground on which to distinguish Beltran).  The petitioner will not “request[] that the conviction be set aside solely in order to prevent deportation,” and the normal habeas corpus petition, coram nobis petition, or motion to vacate will therefore be effective to “remove the legal basis of [the] conviction for purposes of application of federal [immigration] law.”[286]

Therefore, the safest course — as is the case with vacating the conviction itself — is to obtain a court order vacating or setting aside the sentence as legally invalid on some specified ground.  This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, and even a petition for a writ of audita querela — as long as the order recites that the sentence is vacated because it is legally invalid.

 

The next safest course of action is to word the order as “vacating and setting aside” the previous custody order (without mentioning the grounds), even if the order is granted as a matter of discretion.  The court must then impose a new non-deportable sentence.  This is very likely to be effective, because the BIA may not “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.[287]

 

[280] “Such an order or writ [vacating a criminal conviction] may prevent an attempted deportation grounded upon the vacated conviction.”  Matter of Sirhan, 13 I. & N. Dec. 592, 597 (BIA 1970).

[281] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled alien to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport alien whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of alien based on invalid conviction could not be considered “lawfully executed”); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).

[282] Congress recently redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA), § 322, amending Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[283] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000) (footnote 30 omitted).

[284] Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).

[285] E.g., Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[286] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[287] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).  The BIA rejected the Service’s argument that a conviction vacated for purposes of avoiding removal, rather than based on a ground of legal invalidity, remains a conviction under the INA, and held that a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute.  In an unpublished decision, the BIA held that a state court order modifying a one-year sentence nunc pro tunc to reflect a sentence of 220 days’ confinement was effective to eliminate the previously-imposed one-year sentence as a basis to find a conviction to be an aggravated felony.  Matter of Barragan, A14-262-818 (BIA June 16, 1999), citing Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (deportation proceedings terminated because noncitizen’s sentence had been modified to less than one year).

CONVICTION - FINALITY - DIRECT APPEAL
In general, a criminal conviction may not be considered by the immigration authorities until it is final. Pino v. Landon, 349 U.S. 901 (1955). Although a conviction subject to collateral attack or other modification is final, the United States Courts of Appeals have generally agreed that a conviction is not final until direct appellate review has been either exhausted or waived. White v. INS, 17 F.3d 475 (1st Cir. 1994); Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981); Marino v. INS, 537 F.2d 686 (2d Cir. 1976). In Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994), the BIA recognized the distinction between direct appeals as of right and discretionary appeals to the next higher court in a tiered state court system, also commonly referred to procedurally as "direct appeals." Id. at 896. The BIA held that an alien who has exhausted his right to a direct appeal of his criminal conviction is subject to deportation for that conviction, and that the potential for further discretionary review on direct appeal, such as a discretionary request to file a nunc pro tunc appeal, will not affect the finality of the conviction for the purpose of immigration proceedings. Id. See also Morales-Alvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981). In three circuits, however, decisions have cast doubt on whether the 1996 statutory definition of conviction abolished this finality requirement by failing to mention it. Puello v. BCIS, 511 F.3d 324, ___, (2d Cir. Dec. 20, 2007) ("IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute. See Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir. 2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Moosa, 171 F.3d at 1009.") (dictum). This flies in the face of the rule that Congress is presumed to support existing law when legislating in the area unless it expressly overrules it.

BIA

INADMISSIBILITY " DATE OF CONSIDERATION " VACATED CONVICTION
Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

First Circuit

POST CON RELIEF - EFFECTIVE ORDER
Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir.2000) (applying Pickering analysis to vacated convictions, although decision pre-dates Pickering; subsequent dismissal of charges, based solely on rehabilitative goals does not vitiate that original admission).

POST CON RELIEF - AFTER VACATUR, FEDERAL COURT MUST RESENTENCE DEFENDANT WHOSE ORIGINAL SENTENCE HAD BEEN ENHANCED BY VACATED CONVICTION
United States v. Pettiford, 101 F.3d 199, 200-202 (1st Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox, 83 F.3d 336, 339-340 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (government conceded Custis allowed defendant to reopen sentencing); United States v. LaValle, 167 F.3d 1255 (9th Cir. 1999); cf. United States v. Fondren, 54 F.3d 533, 535 (9th Cir. 1995).

Third Circuit

POST CON RELIEF " DHS ALLOWED TO FILE NEW CHARGES OF REMOVAL AFTER VACATUR OF CONVICTION
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

CONVICTION - FINALITY - PENDENCY OF POST-CONVICTION RELIEF DOES NOT DESTROY FINALITY OF CONVICTION FOR REMOVAL PURPOSES
Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun. 9, 2008) ("pendency of post-conviction motions or other forms of collateral attack . . . does not vitiate finality [of a conviction for removal purposes], unless and until the convictions are overturned as a result of the collateral motions."), citing United States v. Garcia-Echaverria, 374 F.3d 440, 445-46 (6th Cir. 2004); Grageda v. INS, 12 F .3d 919, 921 (9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982); Will v. INS, 447 F.2d 529, 533 (7th Cir. 1971).

POST CON RELIEF - EFFECTIVE ORDER
Cruz v. Atty Gen. of the US, ___ F.3d ___ (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated). http://caselaw.lp.findlaw.com/data2/circs/3rd/052764p.pdf

POST CON RELIEF - EFFECTIVE ORDER - ARGUMENT THAT VACATED CONVICTIONS ARE NOT CONVICTIONS
In Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005), the Third Circuit held it was reasonable for the BIA to hold that a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but that convictions those vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes.  The court established a categorical test for distinguishing between these two types of vacatur: "To determine the basis for a vacatur order, the agency must first look to the order itself.  If the order explains the courts reasons for vacating the conviction, the agencys inquiry must end there.  If the order does not give a clear statement of reasons, the agency may look to the record before the court when the order was entered.  No other evidence of reasons may be considered."  The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors."  In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinhos ineffective assistance claim."      The Third Circuit, however, also stated: "Given the expansive statutory definition of "conviction," and the deference the agencys interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that."  (Id. at ___ [emphasis supplied]).      If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction, INA 101(a)(48)(A), includes as convictions even those that have been vacated as legally invalid on constitutional grounds such as ineffective assistance of counsel, the following arguments might be a starting point.      The suggestion in Pinho that the agency could adopt an interpretation of the statute that included as convictions even those that had been vacated as legally invalid was not part of the holding of the court.  This issue was not before the court in Pinho.  The language in question is therefore dictum.  R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).).      In fact, such an interpretation is unsupportable as well as unconstitutional, and should not be adopted.  It is unsupportable because the statute and legislative history give no support to this interpretation.  Elsewhere in Pinho, the court stated: Nothing in the statute specifically addresses vacated convictions.  Clearly they are not convictions that have been withheld.  If they are covered, then, it will be under the first disjunct: "a formal judgment of guilt of the alien entered by a court."   The statute is entirely silent with respect to the subsequent procedural history of a "judgment entered by a court," and the undoubted congressional purpose of closing the "withheld judgment" loophole tells us nothing whatsoever about what Congress purpose was with respect to vacaturs, or whether it had any purpose at all in that regard.  (Id. at ___ [footnote omitted].)      Since deportation on the basis of a conviction is a drastic result, the agency is not free to create out of whole cloth a statutory interpretation that has no support in the text or legislative history of the statute. Mr. Justice Douglas, speaking for a unanimous Supreme Court, stated:
"We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17).  It is the forfeiture for misconduct of a residence in this country.  Such a forfeiture is a penalty.  To construe this statutory provision less generously to the alien might find support in logic.  But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."  Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948).      Reiterating this principle, Chief Justice Warren has written,  "Although not penal in character, deportation statutes as a practical matter may inflict the equivalent of banishment or exile, . . . and should be strictly construed."  Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98 L.Ed. 1009 (1954).  While The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia Gonzales, saying, "We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked."  Garcia Gonzales  v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965). See also Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. at 384 n.8 (2005) (applying rule of lenity to aggravated felony definition in deportation context).      Aside from being an unsupportable interpretation, it would probably be unconstitutional to allow the agency to attach such drastic consequences to a conviction that the law of the case had determined to be unconstitutional.  As the court recognized, elsewhere in Pinho: Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agencys interpretation, but also serves to avoid the constitutional problems that might arise under a reading which brings constitutionally protected conduct or constitutionally infirm proceedings into the category of "conviction"-cases, for example, involving an alien who was convicted of conduct subsequently deemed constitutionally protected, or whose conviction was reversed on direct appeal because of insufficient evidence, or whose conviction was vacated on collateral attack because of a plain constitutional defect. The agency does not read the statute as encompassing such situations, however, so these difficult cases have not come before us.  Id. at ___, n. 22.      Therefore, it would be not only unsupportable but unconstitutional to include as convictions those that had been vacated as legally invalid.      The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors."      In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinhos ineffective assistance claim." Suggest petition for rehearing in Pinho to eliminate the following language: "Given the expansive statutory definition of "conviction," and the deference the agencys interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that." (Id. at ___ [emphasis supplied]).      The court should grant a petition for rehearing and eliminate this italicized language. This issue was not before the court in Pinho. The italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

POST CON RELIEF - CONVICTION - VACATUR CATEGORICAL ANALYSIS APPLIED TO PICKERING ISSUE
Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005) (a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes; convictions vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes; "To determine the basis for a vacatur order, the agency must first look to the order itself. If the order explains the courts reasons for vacating the conviction, the agencys inquiry must end there. If the order does not give a clear statement of reasons, the agency may look to the record before the court when the order was entered. No other evidence of reasons may be considered.")
http://www.ca3.uscourts.gov/opinarch/043837p.pdf

Sixth Circuit

POST CON RELIEF " EFFECTIVE ORDER " BURDEN
Barakat v. Holder, 621 F.3d 398 (6th Cir. Aug. 18, 2010) (government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons).

POST CON RELIEF - EFFECTIVE ORDER -THE DEFENDANT'S MOTIVE IN SEEKING TO VACATE IS IRRELEVANT
Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction.").

JUDICIAL REVIEW - PETITION FOR REVIEW - DISPOSITION - WHERE RECORD CONTAINED INSUFFICIENT EVIDENCE TO ESTABLISH DEPORTABILITY, REMEDY WAS REVERSAL WITHOUT REMAND FOR CONSIDERATION OF ADDITIONAL EVIDENCE
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003). (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, removal proceedings ordered terminated without remand for consideration of additional evidence).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, deportation proceedings ordered terminated without remand for consideration of additional evidence).

Ninth Circuit

POST CON RELIEF " REASON TO BELIEVE
Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.

POST CON RELIEF - EFFECTIVE ORDER - NINTH CIRCUIT FOLLOWS PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS AFTER VACATUR HAS BEEN ISSUED
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove "with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.") (original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

POST CON RELIEF - AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE ON REMAINING COUNTS
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

POST CON RELIEF - AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED
Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006).

Tenth Circuit

POST-CONVICTION " FINALITY OF CONVICTION
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir.2008) (adopting the reasoning of sister circuits and holding that the pendency of collateral proceedings does not vitiate finality).

Eleventh Circuit

POST CON RELIEF - VACATED CONVICTION IS A LEGAL NULLITY UNDER FEDERAL IMMIGRATION LAW CONTROLLED SUBSTANCES - INADMISSIBILITY - REASON TO BELIEVE ILLICIT TRAFFICKER
Garces v. U.S. Attorney General, 611 F.3d 1337 (11th Cir. July 27, 2010) (no contest plea to a later-vacated conviction and hearsay statements in the police report are insufficient to establish noncitizen was inadmissible for "reason to believe" he engaged in drug trafficking); see Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006) (a vacated conviction is a legal nullity for purposes of federal immigration law if the reason for vacatur is a constitutional, statutory, or procedural defect in the underlying criminal proceedings); cf. Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379-80 (BIA 2000) (the vacatur need not derive from the violation of a federal right necessarily; violation of a state right will be granted full faith and credit); see Matter of Adamiak, 23 I. & N. Dec. 878, 879-80 (BIA 2006) (a vacatur has no bearing on immigration proceedings if obtained under a rehabilitative statute or to help avoid "immigration hardships"); cf. Resendiz-Alcaraz v. U.S. Atty Gen., 383 F.3d 1262, 1267-69 (11th Cir. 2004) (a conviction expunged by completing probation held still a conviction for immigration purposes). PCN:4.6;CD4:11.5;AF:6.4;SH:4.28;CMT3:10.4

Other