The INS is increasingly challenging the effectiveness of a criminal court order to vacate a criminal conviction, for purposes of eliminating the adverse immigration consequences of the conviction.  It is therefore important to be very clear on what is required of an order vacating a criminal conviction so that the vacatur is accepted in the immigration context as effectively eliminating the immigration consequences of the conviction.

 

First, a conviction that is vacated as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[6]  This also allows resentencing in federal court: “[A] defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction.”[7]

 

This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, and even a petition for a writ of audita querela — so long as the order recites that the conviction is vacated because the conviction is legally invalid.

 

Second, if a conviction is vacated on purely humanitarian grounds, solely to eliminate the immigration consequences, or on the basis of state rehabilitative statutes, without any claim that the conviction is legally invalid, the conviction generally continues to exist to trigger adverse immigration consequences, and the rehabilitative post-conviction order does not effectively remove the adverse immigration consequences of the conviction.[8]  There is an exception to this general rule, so far, only in the Ninth Circuit, and limited to a small class of first-offense controlled substances offenses, principally simple possession and equivalent or less serious offenses that are not forbidden under federal controlled substances statutes.[9]

 

Third, in immigration proceedings, the immigration authorities should not be permitted collaterally to attack a final state or federal criminal court order setting aside a conviction by arguing it was obtained on humanitarian grounds or solely to eliminate the immigration consequences, when the face of the record demonstrates that it was granted on a ground of legal invalidity.[10] 

 

Fourth, the DHS may attempt to challenge orders vacating convictions on the basis that they are beyond the jurisdiction of the criminal court.  See § 6.9, infra.  If this position is sustained, and if the government can actually establish lack of jurisdiction, the vacated conviction would continue to exist for immigration purposes.[11]

[6] See § 6.3, infra.

[7] United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999), quoted in United States v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001), cert. denied, 122 S.Ct. 383 (2001).

[8] See § 6.11, infra.

[9]  See § 6.14, infra.

[10] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[11] But see Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

First Circuit

POST-CON - EFFECTIVE ORDER - NUNC PRO TUNC
Lawrence v. Gonzales, ___ F.3d ___, 2006 WL 1195679 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA 212(c) is unavailable where the new plea was not entered nunc pro tunc).

Third Circuit

POST CON RELIEF - EFFECTIVE ORDER
Cruz v. Atty Gen. of the US, ___ F.3d ___ (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated). http://caselaw.lp.findlaw.com/data2/circs/3rd/052764p.pdf

Other

POST CON - EFFECTIVE ORDER
N. Tooby, Recent Developments Concerning Effective Orders Vacating Convictions, 11 Bender's Imm. Bull. 534 (Jun. 1, 2005).