Post-Conviction Relief for Immigrants

A direct appeal of right can have two important immigration consequences:

1.         During its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not exist for immigration purposes;[64] and

2.         If the appellate court reverses the judgment of conviction, the conviction ceases to exist for immigration purposes and cannot trigger deportation or inadmissibility, or, indeed, any other adverse immigration consequence that is dependent on the existence of a conviction.  See § 5.24, infra.

[64] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  An INS regulation provides that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242.2(b) (defining “conviction” for purposes of the restriction against judicial review of removal orders of convicted aliens, INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C)).