An order vacating a conviction as legally invalid on the basis of any procedural or substantive defect eliminates the conviction generally, and it may not be used as a basis for deportation, removal, exclusion, statutory ineligibility to show good moral character, or any other immigration purpose.[35]  However, a conviction vacated solely for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains in existence for immigration purposes.[36]  For example, where respondent vacated the criminal convictions upon which a 1994 OSC was filed, and the INS was thereafter proceeding upon a 1999 Amended OSC grounded upon a 1999 firearms conviction, respondent was entitled to apply for cancellation of removal under post-IIRAIRA law even though the deportation proceedings had originally been initiated under prior law.[37]

 

            It is important to be aware of less obvious effects of a conviction, as well, which may also be eliminated if the conviction is vacated.  For example, if a noncitizen is charged with removal on account of a conviction of a crime involving moral turpitude for which a sentence of one year may be imposed, and that maximum sentence applies because of the existence of a prior conviction which has now been vacated, the noncitizen is no longer removable.  The deportation ground is written in the present tense (“sentence . . . may be imposed”),[38] and the condition precedent to the higher maximum sentence no longer exists.  Therefore, it is no longer true that a one-year sentence “may be imposed.”  Therefore, the conviction no longer triggers removal.  (This argument does not apply as well to the petty offense exception situation, since that statute is written in the past tense, to apply if the maximum sentence “did not exceed” one year.)[39]  Similarly, a second federal conviction of telephone wagering constitutes an aggravated felony.[40]  If the first conviction is vacated as legally invalid, arguably the second offense is no longer a second conviction, and thus cannot constitute an aggravated felony.

[35] Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006). 

[36] Ibid.

[37] Welch v. Reno, 101 F.Supp.2d 347 (D. Md. 2000).

[38] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II).

[39] INA § 212(a)(2)(A)(ii)(II); 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[40] INA § 101(a)(43)(J); 8 U.S.C. § 1101(a)(43)(J)(“an offense described in section 1084 [of Title 18] (if it is a second or subsequent offense)”).

Other

VEHICLES " 1983 DECLARATORY JUDGMENT ACTION - VEHICLES " 1983 ACTION FOR DECLARATORY JUDGMENT THAT PRIOR CONVICTION IS UNCONSTITUTIONAL
Practice Advisory. It may be possible to obtain relief from collateral consequences of an unconstitutional conviction, for which custody has expired, by means of a civil rights action under 42 U.S.C. 1983. Cf. Skinner v. Switzer, ___ U.S. ___, 2011 WL 767703 (March 7, 2011)(convicted state prisoner may seek DNA testing of crime-scene evidence in 1983 action, since Rooker-Feldman doctrine that loser in state court cannot use 1983 action to obtain federal review of constitutionality of state conviction did not bar claim). The court stated: District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. ----, ----, 129 S.Ct. 2308, 174 L.Ed.2d 38 left unresolved the question whether a convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983 or may assert the claim in federal court only in a petition for a writ of habeas corpus under 28 U.S.C. 2254. In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), we comprehensively surveyed this Court's decisions on the respective provinces of 1983 civil rights actions and 2254 federal habeas petitions. Habeas is the exclusive remedy, we reaffirmed, for the prisoner who seeks immediate or speedier release from confinement. Id., at 82, 125 S.Ct. 1242. Where the prisoner's claim would not necessarily spell speedier release, however, suit may be brought under 1983. Ibid. Adhering to our opinion in Dotson, we hold that a postconviction claim for DNA testing is properly pursued in a 1983 action. Success in the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or inconclusive. In no event will a judgment that simply orders DNA tests necessarily impl[y] the unlawfulness of the State's custody. Id., at 81, 125 S.Ct. 1242. Skinner v. Switzer, ___ U.S. ___, ___, 2011 WL 767703 (March 7, 2011). There are some old U.S. Supreme Court cases, like Burgess v. Texas, that basically say it violates the constitution to impose any penalty on account of an unconstitutional conviction. Now, Padilla says criminal deportation is a "penalty". Maybe that means it's unconstitutional to impose deportation on account of an unconstitutional conviction. It might be possible to bring a 1983 action for a declaratory judgment that the prior state conviction that violates Padilla was imposed in violation of the Constitution. If successful, counsel could take that declaratory judgment holding the state prior conviction was unconstitutional into immigration court and argue that respondent is not trying to challenge the constitutionality of the state conviction in immigration court. Respondent has already done that in federal court in the 1983 action and prevailed, so the immigration court must give full faith and credit to the district court judgment finding the state prior conviction unconstitutional. Counsel can argue that the Burgess line of cases holds the federal courts cannot impose any penalty on account of an unconstitutional conviction. The federal habeas mootness cases hold this question of the constitutionality of a prior conviction is not moot so long as any collateral consequence, such as deportation, continues to flow from it, or potential impeachment as a witness on account of the conviction, or deprivation of the right to vote, etc., so the expiration of custody does not render these issues moot. This would be a difficult avenue to pursue, since the Supreme Court has generally precluded federal courts from entertaining post-conviction attacks against state convictions. See, e.g., Premo v. Moore. But there may be something there.