The steps required to give immigration effect to post-conviction relief will differ depending upon the stage of the immigration proceedings at the time criminal counsel is able successfully to obtain a solution in criminal court.  The noncitizen may, for example, need to move to reopen some level of the immigration proceedings, or ask for a remand to a lower court.  For further discussion on what steps to take, see Criminal Defense of Immigrants § § 11.74-11.85; N. Tooby, Post-Conviction Relief for Immigrants, Chapter 10 (2004).[158]  See Criminal Defense of Immigrants § 15.34, concerning a motion to reopen or reconsider a removal order.

 

[158] See also AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (Jan. 17, 2007).  http://www.ailf.org/lac/lac_pa_index.shtml.

Ninth Circuit

POST CON RELIEF " VACATUR " MOTION TO REOPEN " BIA FREQUENTLY GRANTS MOTION TO REOPEN SUA SPONTE AFTER VACATUR REMOVES BASIS FOR REMOVAL
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte under 8 C.F.R. 1003.2(a); cf. In re Rodriguez"Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (concluding that a conviction vacated on the merits cannot form the basis for an alien's removal). The Board regularly grants such requests when the alien's underlying conviction has been vacated due to a substantive or procedural defect in the original criminal proceedings, concluding that such a change in the facts constitutes exceptional circumstances justifying further review of the alien's case.) (footnote omitted).