(B)  A Conviction May Not Be Attacked in Immigration Proceedings Unless the Conviction is Void on its Face.  A criminal conviction cannot be eliminated in immigration court.[1]  Collateral attacks on the validity of a criminal conviction are not permitted in immigration court.[2]  The immigration court must accept the conviction as valid, under the Full Faith and Credit Clause and statute, unless the conviction has been set aside on a ground of legal invalidity by the criminal court that rendered it in the first place.[3]  The exception is a conviction that is void on its face under the law of the jurisdiction in which it was rendered; the immigration courts must disregard such a conviction.[4]  The repeal of a statute of conviction after conviction and sentence have occurred may not eliminate the conviction as a ground of deportation.[5]

[1] See Drakes v. INS, 205 F.3d 385 (3d Cir. June 3, 2003) (district court may not entertain in a habeas proceeding under 28 U.S.C. § 2241 a collateral attack on a state conviction, that serves as a basis for deportation).

[2] De La Cruz v. INS, 951 F.2d 226 (9th Cir. 1991); Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (no collateral attack on the validity of a state criminal conviction is allowed in a deportation proceeding); United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985) (federal courts do not permit collateral attack on conviction based on claim of ineffective counsel in failing to advise client of immigration consequences of guilty plea); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (noncitizen may not collaterally attack a conviction in immigration court on the ground criminal counsel failed to advise him or her of the immigration consequences of guilty plea); Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (noncitizen cannot attack validity of foreign conviction in immigration court); Ocon-Perez v. INS, 550 F.2d 1153 (9th Cir. 1977); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971) (orderly administration of justice precluded examination of validity of a conviction, but case was remanded when sentence vacated); Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967); Ordaz-Machado v. Rivkind, 669 F.Supp. 1068, 1070 (S.D. Fla. 1987) (deportation order may be based on conviction unless it is vacated in a post-conviction motion).  But see Durante v. Holton, 228 F.2d 827 (7th Cir. 1956) (federal court reviewing a deportation order can rule on a claim that the state court conviction providing the basis of the deportation order was rendered in violation of due process of law); Marino v. Holton, 227 F.2d 886 (7th Cir. 1955).

[3] Proof of a conviction precludes further inquiry in the immigration court concerning guilt, since the immigration authorities are not required or allowed to retry the criminal case.  Brice v. Pickett, 515 F.2d 153 (9th Cir. 1975);  Mylius v. Uhl, 210 F. 860 (2d Cir. 1914); Matter of Madrigal-Calvo, 21 I. & N. Dec. 323 (BIA 1996); Matter of Reyes, 20 I. & N. Dec. 789, 793 (BIA 1994); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974); Matter of Sirhan, 13 I. & N. Dec. 592, 594 (BIA 1970).  See Noell v. Bensinger, 586 F.2d 554 (5th Cir. 1978) (deportability triggered by fact of conviction); Quereshi v. INS, 519 F.2d 1174 (5th Cir. 1975) (same).  See Gordon § 71.05[1][d][ii]. “[The] guilty plea collaterally estops him from denying the essential allegations of the indictment, including not only his intentional assistance to the principal but his knowledge that the principal committed voluntary murder. See Manzoli v. Commissioner, 904 F.2d 101, 105 (1st Cir. 1990) (party to civil action collaterally estopped from relitigating material issue resolved against him in prior criminal action).”  Cabral v. INS, 15 F.3d 193, 197 n.7 (1st Cir. 1994).

[4] The immigration courts will disregard a conviction which is void on its face under the law of the jurisdiction in which it was rendered.  Freislinger v. Smith, 41 F.2d 707 (7th Cir. 1930); Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930).  Absent a judicial decision holding the statute invalid or vacating the conviction, the statute underlying the conviction must be accepted at face value and its constitutionality cannot be questioned in the deportation proceeding.  Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971); Matter of Alfonso Bermudez, 12 I. & N. Dec. 225 (BIA 1967).

[5] Mahler v. Eby, 264 U.S. 32 (1924).

Other

POST CON RELIEF " RESOURCES " STATE BY STATE POST-CONVICTION RELIEF STATUTES
This practice advisory and a link discuss state by state post-conviction relief statutes. http://www.adminrelief.org/resources/item.566101-Post_Conviction_Relief_Resources_by_State They are also on the www.adminrelief.org website.

CRIMINAL DEFENSE - POST-CONVICTION RELIEF - POST CON RELIEF - APPEALS
T. O'Toole, Appeal and Post Conviction Review, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 663 (2d ed. 2007).