Generally speaking, a court order vacating a conviction on a ground of legal invalidity that existed at the time the conviction originally came into existence is effective to eliminate the conviction for immigration purposes. See § 6.4, infra.  The 1996 statutory definition of conviction did not alter this result, see § 6.5, infra, and the BIA decision in Matter of Pickering likewise did not alter this result.  See § 6.6, infra.  The Full Faith and Credit doctrine precludes immigration courts from looking behind the face of a court order vacating a conviction.  See § 6.7, infra.  Even convictions vacated on grounds of legal invalidity based on the lack of, or inaccurate, immigration advice at plea are eliminated for immigration purposes.  See § 6.8, infra.  It is possible, however, for the immigration authorities to argue that a conviction vacated by a court which lacked jurisdiction to enter the vacatur continues to exist for immigration purposes.  See § 6.9, infra.  A great many grounds of legal invalidity may be used to vacate convictions for immigration purposes.  See § 6.10, infra. 

 

First Circuit

POST CON RELIEF - AFTER VACATUR, FEDERAL COURT MUST RESENTENCE DEFENDANT WHOSE ORIGINAL SENTENCE HAD BEEN ENHANCED BY VACATED CONVICTION
United States v. Pettiford, 101 F.3d 199, 200-202 (1st Cir. 1996); United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996); United States v. Cox, 83 F.3d 336, 339-340 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (government conceded Custis allowed defendant to reopen sentencing); United States v. LaValle, 167 F.3d 1255 (9th Cir. 1999); cf. United States v. Fondren, 54 F.3d 533, 535 (9th Cir. 1995).

Third Circuit

POST CON RELIEF " DHS ALLOWED TO FILE NEW CHARGES OF REMOVAL AFTER VACATUR OF CONVICTION
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

Sixth Circuit

POST CON RELIEF " EFFECTIVE ORDER " BURDEN
Barakat v. Holder, 621 F.3d 398 (6th Cir. Aug. 18, 2010) (government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons).

Ninth Circuit

POST CON RELIEF - AFTER VACATUR, CRIMINAL COURT CAN RESENTENCE ON REMAINING COUNTS
United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining counts of conviction). Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997) No. 96-6315; United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

POST CON RELIEF - AFTER VACATUR, DISMISSED COUNTS ARE REINSTATED
Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (No. 97-5066) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006).