Post-Conviction Relief for Immigrants

Several district courts have vacated otherwise valid federal criminal convictions, in order to avoid unjust immigration consequences, pursuant to the All Writs Act,[197] which provides in pertinent part that “the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.”  The All Writs Act is a residual source of authority permitting the issuance of writs not otherwise covered by statute.[198]  The Act authorizes a court to “construct any remedy necessary to ‘achieve justice.’”[199]  Thus, the All Writs Act arguably grants the court the authority to grant equitable relief to avoid unfairly harsh immigration consequences that were not anticipated when the plea was entered.

            In United States v. Javanmard, the court granted an order vacating defendant’s conviction pursuant to the All Writs Act.[200]  Javanmard applied for amnesty despite having suffered a prior 1983 felony conviction for making a false statement.[201]  He requested relief in equity from the district court so that he could avail himself of the amnesty provisions of IRCA.  Under IRCA, a felony conviction disqualifies an applicant from receiving amnesty.[202]  The court found that the equities and the interest of justice favored the defendant.[203]  The court noted that Javanmard had never been convicted or charged with any other offense in his fourteen years in the United States.  The offense was unlikely to recur.  The defendant had complied with most of the terms of probation and was a successful student.  All of this was found to outweigh the government’s interest in maintaining a criminal record.

            In United States v. Grajeda-Perez, the court issued a writ for relief from judgment under the All Writs Act in order to achieve justice for an alien convicted of a gun possession charge who faced disqualification from amnesty and subsequent deportation.  In that case, part of defendant’s plea bargain was an agreement that the conviction would not be used to deport him.

The Second and Ninth Circuits, however, held that the All Writs Act does not grant the federal courts any independent basis on which to grant relief from a criminal conviction.[204]  Even if a federal court did issue such a writ, purporting to vacate a federal criminal conviction, the immigration and federal courts would not take that order as eliminating the conviction for immigration purposes, unless it was based on a ground of legal invalidity.  See Chapter 4, supra.  Moreover, even if granted, the government could claim that the court granting this writ lacked jurisdiction to do so, at least in the Second and Ninth Circuits.

[197] 28 U.S.C. § 1651(a).  See United States v. Morgan, 346 U.S. 502, 511-512 (1954); United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982); United States v. Grajeda-Perez, 727 F.Supp. 1374 (E.D.Wash. 1989), discussed at Interpreter Releases, May 22, 1989, pp. 570-571.

[198] Pennsylvania Bureau of Corrections v. United States Marshall, 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed. 2d 189 (1985).

[199] United States v. Javanmard, 767 F.Supp. 1109, 1111 (D.Kan. 1991).

[200] The court anticipated granting relief when the defendant completed payment of restitution.  United States v. Javanmard, 767 F.Supp. 1109, 1112 (D. Kan. 1991).

[201] Javanmard, 767 F.Supp. at 1110.

[202] INA § 245A(a)(4)(B), 8 U.S.C. § 1255(a)(4)(B).

[203] Id. at 111-1112; see also United States v. Grajeda-Perez, 727 F.Supp. 1375 (D. Colo. 1989) (granting relief from a gun possession conviction pursuant to the All Writs Act so that the defendant could pursue amnesty).

[204] United States v. Tablie, 166 F.3d 505 (2d Cir. 1999) (district court lacked jurisdiction under the All Writs Act to vacate a valid conviction for conspiracy and making false statements to the INS, despite a finding that the non-citizen was an upstanding and exemplary member of the community); accord, United States v. Bravo-Diaz, 312 F.3d 995 (9th Cir. 2002); Doe v. INS, 120 F.3d 200 (9th Cir. 1997).