Tooby's California Post-Conviction Relief for Immigrants

 

This principle has not been altered by the IIRAIRA new definition of conviction.[24]  For example, the Ninth Circuit has recently reaffirmed this principle, in dictum, on the basis of a DHS concession:

 

The INS concedes, and we agree, that Congress did not intend that a conviction subsequently overturned on the merits (either because of a finding of insufficient evidence or because of a basic procedural inadequacy, such as a violation of the right to counsel), could serve as the basis for deportation.  Thus, the INS acknowledges that a court's subsequent treatment of a conviction, after it has been entered, may in some cases serve to prohibit its use for immigration purposes.[25]

 

The court continued:

 

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant's guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[26]

 

            Moreover, in a thoughtful analysis of the context and content of the new definition of conviction, the Ninth Circuit concluded that the purpose of the new definition was to alter the nature of the disposition that is considered a conviction in the first place, rather than to change any part of the law affecting the circumstances under which a conviction would be considered to have been eliminated by some later judicial action.[27]

 

After a motion or petition to vacate a conviction has been filed on a ground of legal invalidity -- even if there is no explicit order vacating a conviction – if the criminal court 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 non-deportable conviction substituted.  In Sandoval v. INS,[28] the court of appeals 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[29] 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.[30]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, which is only possible as a lawful sentence if the defendant is a first-time offender convicted of possession of 30 grams or less of marijuana.

 

In holding that the criminal court had implicitly vacated the original judgment on a ground of legal invalidity, the circuit court distinguished Matter of Roldan-Santoyo,[31] removal orders vacated sub nom. Lujan-Armendariz v. INS,[32] on the grounds that here, the state court judge had not used a state rehabilitative statute but rather used a statute authorizing him to vacate a conviction or sentence on grounds of a constitutional violation.

 

            Therefore, the new definition of conviction does not alter the long-standing rule that a criminal court order vacating a conviction on some ground of legal invalidity effectively eliminates the conviction for all immigration purposes.  Since the result of issuance of the order is to vacate the conviction completely, there is no conviction to be held against the defendant for immigration purposes.[33]  The DHS has conceded as much in other cases as well.[34]

[24] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A); Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. Jan. 18, 2005) ("This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment.”)

[25] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000)(footnote 30 omitted).

[26] Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).

[27] “Instead, the purpose of the amendment [i.e., the new statutory definition of ‘conviction’] appears to have been to establish the time at which a particular type of proceeding, specifically, deferred adjudication, results in a conviction for immigration purposes -- not to alter the long-standing rule that a conviction entered but subsequently vacated or set aside cannot serve as the basis for a deportation order.”  Lujan-Armendariz v. INS, 222 F.3d 728, 745 (9th Cir. 2000).  But see Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).

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

[29] 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).

[30] “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).

[31] Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[32] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[33] Hernandez-Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (5th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I&N 592 (BIA 1970); see also Matter of O., 7 I. & N. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. 677, 680 (BIA 1979).

[34] In Cruz-Sanchez v. INS, 438 F.2d 1087 (9th Cir. 1971), the INS pointed out that “if petitioner is successful in challenging his conviction in the court which rendered the judgment, he may move to reopen the deportation proceeding.”  Id. at p. 1089.  Petitioner did so, and the Ninth Circuit, on rehearing, recognized that the criminal court “has now vacated the sentence . . . upon which the Order of Deportation sought to be reviewed was based.”  Ibid.  The court therefore remanded the matter to the INS, with directions to give the matter further consideration in light of the vacation of the sentence.  Ibid.