Vacating the conviction itself — by direct appeal,[145] habeas corpus, coram nobis, motion to withdraw the plea or vacate the conviction, or the like[146] — will also eliminate any adverse immigration consequences (along with all other consequences) flowing from the sentence.  When a judgment is vacated, the sentence is eliminated ab initio as having been illegal from the time it was imposed.[147]  See Chapter 4, supra, § 7.71, infra.

 

Even if there is no explicit order vacating a conviction, if the criminal court, after a motion or petition to vacate a conviction has been filed on a ground of legal invalidity, grants a new sentence that could only be imposed for a non-deportable conviction, the immigration courts must infer the deportable conviction has been vacated, and a new nondeportable conviction substituted.  In Sandoval v. INS,[148] the court granted a petition for review and remanded the case to the BIA for entry of an order terminating deportation proceedings which had been instituted on the basis of an initial felony conviction of possession of more than 30 grams of marijuana.  The defendant had filed a post-conviction motion[149] in the criminal court claiming the plea was involuntary because it had been based on defense counsel’s mistaken advice not to worry about any immigration consequences.[150]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, a sentence that would be possible only if the defendant was a first-time offender convicted of possession of 30 grams or less of marijuana.  The court of appeal honored this new non-deportable sentence.

[145] If a noncitizen prevails on a direct appeal of a criminal conviction that resulted in an order of removal, the reversal of the conviction constitutes a basis on which the removal order may be reopened.  DeFaria v. INS, 13 F.3d 422 (1st Cir. 1993).

[146] United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

[147] “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes, § 4.2(a), p. 4-4 (2001), citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[148] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[149] Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, para. 122 ff., now codified as Ill.Comp.Stat.Ann. 5/122-1 (West Supp. 2000).

[150] “It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.”  People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985).  Reliance on counsel’s mistaken immigration advice can render the plea involuntary.  See id.; People v. Luna, 570 N.E.2d 404, 406-07 (Ill.App.Ct. 1991) (holding that post-conviction petition, which alleged that counsel failed to advise noncitizen that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

Ninth Circuit

POST-CONVICTION RELIEF - WHERE ONE CONVICTION AMONG TWO OR MORE IS REVERSED ON APPEAL, CASE SHOULD BE REMANDED FOR RESENTENCING
United States v. Latu, ___ F.3d ___ (9th Cir. March 19, 2007) (where one conviction is vacated on appeal, case should be remanded for resentencing on remaining counts), citing United States v. Bennett, 363 F.3d 947, 955 (9th Cir. 2004) ("When a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package comes unbundled. The district court then has the authority to put together a new package reflecting its considered judgment as to the punishment the defendant deserved for the crimes of which he was still convicted.") (citations, alterations and internal quotation marks omitted).

Other

CAL POST CON " GROUNDS " SINGLE SHOT IS A SINGLE OFFENSE DESPITE MULTIPLE POTENTIAL VICTIMS
People v. Perez, 50 Cal.4th 222 (Jul. 29, 2010) (conviction for seven counts of premeditated attempted murder of a peace officer and one count of premeditated attempted murder of a civilian reversed and remanded, where shooter indiscriminately fired a single shot at a group with specific intent to kill someone, but without targeting any particular individual, he is guilty of a single count of attempted murder).