While it is generally impossible collaterally to attack the validity of a criminal conviction in immigration court, for the purpose of forestalling deportation, immigration courts will entertain two specific claims that a conviction is legally defective: (1) convictions rendered by a criminal court that lacked jurisdiction over the case,[260] and (2) convictions rendered in absentia, where the defendant did not receive adequate notice of the proceedings.[261]

 

            Occasionally, courts have recognized other defects in a conviction that can be raised in immigration court as a defense to deportation under a ground of deportation based on the conviction.  One example is where the conviction was rendered in total denial of the right to counsel, as opposed to a claim of ineffective assistance of counsel.

 

[260] See § 3.40, infra.

[261] See § 3.42, infra.

CONVICTION " EXISTENCE OF CONVICTION " CONVICTION VOID ON ITS FACE " CONVICTION FOR VIOLATION OF AN UNCONSTITUTIONAL STATUTE
Matter of Rodriguez-Carrillo, 22 I. & N. Dec. 1031, 1034 (BIA 1999) ([I]t is clear that an Immigration Judge and the Board cannot entertain a collateral attack on a judgment of conviction, unless that judgment is void on its face, and cannot go behind the judicial record to determine the guilt or innocence of an alien. See Matter of Madrigal, Interim Decision 3274 (BIA 1996).) (emphasis added). Note: A conviction pursuant to an unconstitutional statute is void on its face.

Fifth Circuit

CONVICTION - EXISTENCE - LEGAL INVALIDITY - IMMIGRATION COURTS MAY NOT ENTERTAIN A CLAIM THAT A CONVICTION, WHICH HAS NOT BEEN OVERTURNED IN CRIMINAL COURT, IS LEGALLY INVALID
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (noncitizen may not collaterally attack the legal validity of a criminal conviction, which has not been overturned in criminal court, in immigration proceedings), following Brown v. U.S. INS, 856 F.2d 728, 731 (5th Cir.1988); see also Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981) ("Once the [state criminal] conviction becomes final, it provides a valid basis for deportation unless it is overturned in a judicial post-conviction proceeding.").

Eleventh Circuit

VAWA " JUDICIAL REVIEW " BATTERED SPOUSE
Butalova v. Atty Gen., __ F.3d __ (11th Cir. Oct. 7, 2014) (court lacks jurisdiction to determine whether noncitizen is a battered spouse, under INA 204(a)(1)(A)(iii)).