Tooby's California Post-Conviction Relief for Immigrants

 

This section will describe the nature of an order vacating a criminal conviction that will be accepted by the immigration authorities as eliminating the immigration consequences of the conviction.  The topics of the effectiveness of orders reducing sentences,[6] state rehabilitative relief in controlled substances and other cases, pardons, and foreign post-conviction relief are covered in other chapters.[7]

 

The order vacating the conviction or sentence must do so on a ground of legal invalidity, rather than solely for compassionate reasons or solely to avoid the adverse immigration consequences Congress sought to attach to the conviction.[8]  In order to obtain effective post-conviction relief by means other than audita querela, counsel must "identify [a] new defense or legal defect[] in the criminal proceedings."[9]  The petitioner in nearly every case will not "request[] that the conviction be set aside solely in order to prevent deportation . . . ." [10]  And the normal habeas petition, coram nobis petition, or motion to vacate will therefore be effective to "remove the legal basis of [the] conviction for purposes of application of federal [immigration] law." [11]

 

To be effective, the court order in the original criminal case vacating or setting aside the conviction must meet a number of specific requirements.

           

First, the court order must vacate the conviction as being legally invalid on some ground.[12]  See § 6.6, infra. This ground can be either procedural or substantive, constitutional or statutory, but the court must declare the conviction to be legally invalid on the basis of a legal defect of some kind, as opposed to vacating it as a reward for showing rehabilitation or as a humanitarian gesture to avoid adverse immigration consequences.[13]

 

Second, the court order vacating the conviction must hold that the conviction was invalid because of a legal defect that was in existence at the time the conviction first arose.  “In accord with the federal court opinions applying the definition of a conviction at section 101(a)(48)(A) of the Act, we find that there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships.”[14]  Therefore, so long as the legal defect was in existence at the time the plea or verdict was first entered, it is sufficient under Pickering to eliminate the immigration consequences of the conviction.

 

Third, the court order and supporting documents must not establish that the vacatur was “entered solely for immigration purposes.”[15]  Because of the possibility that the government or the immigration courts may misconstrue Pickering, post-conviction counsel would be wise to de-emphasize the immigration-related facts of the case and their relation to the ground of invalidity.  If possible, vacate the conviction on a ground of legal invalidity that is completely unrelated to the immigration consequences of the conviction.  At least ensure if possible that the court order and reporter’s transcript of the hearing on the motion to vacate do not mention the immigration consequences.  The immigration consequences may be mentioned as a motive for seeking to invalidate the conviction, so long as it is clear that the court order vacating the conviction is based on a ground of legal invalidity that was in existence at the time of plea or verdict arose.  Any ground of legal invalidity, even one closely related to the immigration consequences of the case, should be held sufficient to eliminate the conviction for immigration purposes.  For example, a conviction vacated because the court failed to deliver the warning of possible immigration consequences required by Penal Code § 1016.5, has been effectively eliminated for immigration purposes.[16]

 

            In many immigration contexts, the burden is on the government to establish the conviction that causes deportation or other adverse immigration effects.[17]  Therefore, immigration counsel can argue that an ambiguous record – that does not clearly state whether the conviction was vacated on a ground of legal invalidity – is sufficient to erase the conviction for immigration purposes.  Criminal counsel, however, should not rely on this rule, but rather should ensure that the record of the post-conviction work establishes with clarity that the conviction was vacated on a ground of legal invalidity.

[6] See Chapter 8, infra.

[7] See Chapter 10, infra.

[8]   Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

[9]  Ibid.

[10]  Ibid. (emphasis supplied).

[11]  Ibid.

[12]  See Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (conviction  must be vacated on ground of legal invalidity existing at the time the conviction arose, as opposed to rehabilitative or immigration purposes, for its immigration effects to be eliminated), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).  See also Matter of Thomas, 24 I.& N. Dec. 416, 419 n.5 (BIA Dec. 13, 2007)(dictum)("We emphasize that a conviction that is dismissed or expunged for rehabilitative purposes is fundamentally different from one that has been vacated on the merits. A conviction that has been reversed on direct appeal, or vacated based on a determination of trial error or actual innocence, cannot be used as a factual predicate for a recidivist enhancement under the CSA because such a vacatur affects the “underlying lawfulness” of the original judgment."), citing United States v. Norbury, 492 F.3d 1012, 1015 (9th Cir. 2007); see also United States v. Cousins, 455 F.3d 1116, 1127 (10th Cir. 2006) (holding a State drug conviction resulted from a violation of the Sixth Amendment right to counsel, and therefore could not be used as a basis for a recidivist enhancement under the CSA), cert. denied, 127 S. Ct. 162 (2006).

[13]  Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006)(immigration consequences of conviction that was vacated for violation of state advisal statute, like Penal Code § 1016.5, have effectively been eliminated).

[14]  Id. at 624.

[15]  Id. at 625.

[16] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA 2006)(effective vacatur under Ohio statute analogous to Penal Code § 1016.5).

[17] E.g., Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove "with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.") (original emphasis), citing Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).