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.[70]  That is because the validity of a deportation order is dependent upon its continued legality.  Thus, where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.[71] 

 

            This includes the circumstance where the conviction has been vacated, for as the Ninth Circuit has stated: “[T]he nullification of a conviction upon which deportability is premised deprives deportation of a legal basis.”[72]  This is true even if the conviction is vacated well after the deportation order has been rendered final by the immigration courts, and even after the order has been executed and the noncitizen has been deported.  A deportation based on an invalid conviction is not “legally executed” and can be recalled at any point.[73] 

 

            In Wiedersperg v. INS,[74] 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 2court 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.[75]  In 1981, the criminal charges were dismissed.[76] 

 

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,[77] 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.”[78]  Even though much time had lapsed, the Ninth Circuit recognized that the deportation order was not valid once the predicate conviction had been vacated.  Thus, regardless of the passage of time and the fact that the noncitizen had already been deported, the deportation was illegal and could not stand.

 

            Similarly, in Estrada-Rosales, the conviction was set aside after the noncitizens’ deportation.  Even though this new circumstance occurred well after the noncitizen had actually been deported, the Ninth Circuit recognized that the deportation was illegal and invalid, stating that the conviction therefore cannot now serve as a legitimate ground for deportation.”[79]  In DeFaria v. INS¸[80] the court upheld the reopening of a final order of deportation upon the request of the INS, but over the objection of the noncitizen, where one of the predicate convictions had been vacated after the case had concluded.  The court noted that this occurrence was not only “new,” but “material” to the validity of the deportation order, which was dependent on the original conviction.  Because one of the predicate convictions had been vacated, the deportation order was no longer valid and the INS had the right to re-open the case to substitute a different conviction to sustain the charge of deportability.

 

The BIA has held that changed circumstances, such as vacating a criminal conviction, are an appropriate basis for reopening administrative proceedings, even if the procedural requirements have not been met.[81]  The BIA has also expressly held that a final order of deportation may be reopened and remanded for further proceedings based on a change in the law.[82] 

PRACTICE POINTER: The new rules limiting motions to reopen must be consulted in this connection.[83]  It is possible to file such a motion within the 90-day time limit, but before the actual receipt of the order vacating the conviction, as long as the filing with the BIA can be supplemented with a copy of the order vacating the conviction before the BIA considers the matter.  It is certainly better to file the order vacating the conviction with the timely motion to reopen if at all possible, because the showing is complete prior to BIA consideration of the matter.  But while the DHS may question the effectiveness of this tactic, there may be no substantive prejudice to the DHS.  Moreover, the BIA and DHS are free to reopen a removal proceeding after this deadline has passed in any event.

 

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 now on direct appeal, and therefore nonfinal, and thus is not a sufficient basis on which to ground a deportation or removal order.[84]

[70] 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).

[71] 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); Weidersperg v. INS, 896 F.2d 1179 (9th Cir. 1990).

[72] Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir. 1990).

[73] See Wiedersperg v. INS, 896 F.2d 1179, 1182-83 (9th Cir. 1990); Estrada-Rosales v. INS¸ 645 F.2d 819, 821 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977).

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

[75] Id. at p. 1180.

[76] Id. at p. 1181.

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

[78] Wiedersperg, supra, at 1181.

[79] Estrada-Rosales, 645 F.2d at 821; see also Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977)(ordering alien re-admitted to United States after he was deported without notice and without the opportunity to contact counsel and where the conviction had been vacated); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971)(reconsidering denial of petition for review and remanding to agency where conviction was vacated); United States v. Smith, 41 F.2d 707 (7th Cir. 1930) (holding that a conviction that was void under state law and could not be corrected  could not give rise to deportation).  

[80] DeFaria v. INS, 13 F.3d 422, 423 (1st Cir. 1993).

[81] See, e.g., Escobar v. INS, 935 F.2d 650, 652 (4th Cir. 1991) (noting that INS had asked to re-open final order of deportation and terminate proceedings where conviction had been expunged); Becerra-Jimenez v. INS¸829 F.2d 996, 1000-02 (10th Cir. 1987)(remanding to agency for consideration of motion to re-open after convictions had been expunged); Haghi v. Russell, 744 F.Supp. 249, 251-52 (D. Colo. 1990) (motion to re-open pursuant to 8 C.F.R. § 3.2 is proper based on the “new and material” evidence of vacation of a conviction). 

[82] In Matter of XGW, 22 I. & N. Dec. 71 (BIA 1998), the Board examined statutory amendments to the term “refugee” and found that the statutory changes rendered the petitioner eligible for relief by virtue of the change in law.  Due to the fundamental statutory change in the definition of the term “refugee,” and in the interests of justice, the Board held it would sua sponte reopen final orders of deportation so that petitioners could apply for asylum under the new law.  This was despite regulations that specified time and number limitations on motions to reopen.  The Court noted that “a significant change in the immigration law made relief available to the applicant on the basis of the same asylum application he filed initially, and he has filed his motion promptly following the new developments.”  In In re GD, 22 I. & N. Dec. 1132 (BIA 1999), the Board again examined when a change in law is sufficiently fundamental so as to qualify as an exceptional circumstance to merit the BIA to reopen or reconsider a case sua sponte.  There, the Board found that a judicial decision was not sufficiently fundamental because it was “at most an incremental development in the law, not a departure from established principles.” 

[83] 8 C.F.R. § § 3.2(c)(2), 3.23(b)(4)(i).

[84] See Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).