Tooby's California Post-Conviction Relief for Immigrants

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.[41]  The noncitizen seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes.[42]

            Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.[43]  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.  The conviction is then on direct appeal, and therefore nonfinal, and thus cannot provide a sufficient basis on which to ground a deportation or removal order.[44]

PRACTICE TIP: The new rules limiting motions to reopen must be consulted in this connection.[45]

            In Wiedersperg v. INS,[46] the court specifically addressed the availability of post-conviction relief to eliminate a previously final conviction for immigration purposes.  In 1968, Wiedersperg was convicted in California state court, and his conviction became final.  In 1969, the INS issued an OSC to deport him on the basis of the state conviction.  In 1973, long after direct appeal had been waived or exhausted, Wiedersperg filed a petition in state court for post-conviction relief on grounds his plea was involuntary.  In 1974, the INS deported him during the writ proceeding, and in 1975, the state court granted the writ and vacated the conviction.[47]  In 1981, the criminal charges were dismissed.[48]

            In 1982, Wiedersperg petitioned the BIA to reopen his case on the ground that his deportation had been based on an invalid conviction, the BIA denied the motion, and he appealed the denial to the Court of Appeals.  The Ninth Circuit cited Mendez v. INS,[49] in which it had held that “the government’s deportation, without notice to counsel, of an alien whose criminal conviction had been vacated, stripped the deportation proceeding of its legality.”[50] 

[41] 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); Cruz v. United States 452 F.3d 240 (2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based had been recently vacated). 

[42] Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007).  But see 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).

[43] 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).

[44] See Matter of P-V, Int. Dec. 3232 (BIA 1994).

[45] 8 C.F.R. § § 3.2(c)(2), 3.23(b)(4)(i).

[46] Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990).

[47] Id. at p. 1180.

[48] Id. at p. 1181.

[49] Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977).

[50] Wiedersperg, supra, at 1181.