Tooby's California Post-Conviction Relief for Immigrants

Vacating the conviction[18] in its entirety -- by direct appeal,[19] habeas corpus, coram nobis, motion to withdraw the plea or vacate the conviction, or the like[20] -- will eliminate any adverse immigration consequences (along with all other consequences) flowing from the conviction.  When a judgment is vacated, the conviction is eliminated ab initio as having been illegal from the time it was imposed.[21]

            Well-settled federal law holds that, “Such an order or writ [vacating a criminal conviction] may prevent an attempted deportation grounded upon the vacated conviction.  Matter of Sirhan, et al., 13 I & N Dec. 592, 597 (BIA 1970).”[22]  The Ninth Circuit has repeatedly held that post-conviction relief vacating criminal convictions eliminates them for immigration purposes.[23]

            PRACTICE TIP:  To be effective in eliminating the immigration consequences of a conviction, it is sufficient if the order vacating the conviction specifies that the judgment is vacated “in its entirety as legally invalid.”  If the court can be persuaded to do so, it is more effective if the order specifies the particular ground of invalidity, for example, “on grounds of ineffective counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.”

[18] In 1996, Congress redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA), § 322, amending Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[19] 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).

[20] 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).

[21] “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 and L. Rosenberg, Immigration Law And Crimes (2001), § 4.2(a), p. 4-4, citing Matter of Sirhan, 12 I. & N. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. 677 (BIA 1979).

[22] Hernandez-Almanza v. INS, 547 F.2d 100, 103 (9th Cir. 1976).

[23] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled alien to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport noncitizen whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of noncitizen based on invalid conviction could not be considered “lawfully executed”; United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).