Tooby's California Post-Conviction Relief for Immigrants

 

Post-conviction relief may mean little to a client if it comes too late to avert the adverse immigration consequences.  Thus, it is important that there is sufficient time remaining in immigration proceedings for immigration counsel to be able to take the criminal-court order vacating the conviction and turn it to use in immigration court, before the client is deported or the 90-day limit on filing a motion to reopen proceedings, after a final removal order, has passed.

 

            In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[33]  Where the legal basis of a finding of deportability has been nullified, a new deportation hearing may be warranted.[34]  A deportation proceeding may also be reopened -- even after a criminal conviction has initially become final -- if a criminal court accepts a late appeal of the criminal conviction and the conviction becomes non-final.  But see § 6.16, infra.[35] 

 

Immigration counsel may be able to obtain a continuance in the removal proceedings pending post-conviction relief in criminal court.  A motion for a continuance is established by regulation, which provides that an "Immigration Judge may grant a motion for continuance for good cause shown."[36]  A "reasonable continuance" may also be granted when the DHS alters or substitutes the charges of removal or factual allegations.[37]

 

            PRACTICE TIP:  The new rules limiting motions to reopen must be consulted in this connection.[38]

 

            A motion to reopen deportation proceedings in immigration court must be filed within 90 days after the deportation order becomes administratively final.  An order of the immigration judge becomes final when the time for taking an appeal to the BIA has expired 30 days after entry of the order.  An order of the BIA dismissing the noncitizen’s appeal is considered final when entered, and the noncitizen has 90 days from then to file a motion to reopen with the BIA in Falls Church, Virginia.  If the motion comes too late, it will be denied unless the DHS joins in the motion, although the BIA retains jurisdiction to reopen proceedings on its own motion thereafter.  It may be possible for the noncitizen to suggest that the BIA reopen the matter sua sponte.

 

            It may be possible to file the motion timely (i.e., within 90 days of the BIA decision), and obtain the order in criminal court vacating the conviction thereafter, as long as the certified copy is provided to the BIA before the BIA has acted on the motion to reopen, although the order vacating the conviction should be submitted with the motion to reopen if at all possible.

 

            If the conviction is vacated after the removal order is final and after the 90-day time limit to file a motion to reopen has expired, it is very difficult to obtain relief in immigration court.  The BIA may on its own motion reopen the case sua sponte "at any time" after the final decision,[39] but it will only do so in exceptional circumstances.[40]  With agreement of all parties, however, the time and number limits to motions to reopen do not apply.[41]

 

          A stay of deportation is also needed in the event that a final order of deportation has issued.  The mere filing of a motion to reopen will not stay the physical deportation of the noncitizen.[42]  Regulations set forth the procedural requirement, but emergency stays can be requested from the BIA at (703) 305-0699. 

 

            In the event that a stay is denied by the immigration courts, the federal circuit court of appeals can be petitioned for a stay.  When accompanied by a petition for review, the petitioner must show either (1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the noncitizen's favor.[43]

[33] See Weidersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I&N 730 (BIA 1966).

[34] Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453, 89 L.Ed. 2103 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

[35] Matter of Cardenas-Abreu, 24 I. & N. Dec. 795 (BIA May 4, 2009)(a conviction need not be final to trigger negative immigration consequences if a pending appeal was filed late – even where an appellate court has initiated the belated appeal).  See Immigrant Defense Project, Practice Advisory, Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu (May 11, 2009), www.immigrantdefenseproject.org. 

[36] 8 C.F.R. § 3.29.

[37] 8 C.F.R. § 3.30.

[38] 8 C.F.R. § § 3.2(c)(2), 3.23(b)(4)(i); see Douglas S. Weigle & Benjamin Landey, Motions to Reopen and Reconsider, in II 1997-1998 AILA Immigration and Nationality Law Handbook -- Advanced Practice 268 (1997).

[39] 8 C.F.R. § 3.2(a).

[40] Matter of LVK, 22 I. & N. Dec. 976 (BIA 1999); In re GD, 22 I. & N. Dec. 1132 (BIA 1999).

[41] 8 C.F.R. § 3.23(b)(4)(iv).

[42] 8 C.F.R. § 3.2(f).

[43] See Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir.2001) (en banc) (concluding that 8 U.S.C. § 1252(f)(2) standard of “clear and convincing” evidence does not apply); see also Maharaj v. Ashcroft, 295 F.3d 963 (9th Cir. 2002) (reaching same conclusion with respect to requests for stays upon appeal from habeas corpus petition challenging removal order).