Aggravated Felonies

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.[338]   Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.[339]  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 then on direct appeal, and therefore nonfinal, and thus is no longer a sufficient basis on which to ground a deportation or removal order.[340]

PRACTICE POINTER: The rules limiting motions to reopen must be consulted in this connection.[341]

In Wiedersperg v. INS,[342] 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 court 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.[343]  In 1981, the criminal charges were dismissed.[344] 

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,[345] 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.”[346] 

After a conviction has been vacated, the government, as well, may reopen proceedings to file new charges of removal, and the law allows it to do so.[347]

[338] See Wiedersperg 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. Dec. 730 (BIA 1966); 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 Cruz-Godonez v. Ashcroft, 40 Fed.Appx. 565 (9th Cir. 2002) (court of appeals lacked jurisdiction to reopen deportation order, since respondent had been deported for an aggravated felony, even though sentence upon which deportation order was based had later been reduced by state court, since respondent was an aggravated felon at the time of his removal).

[339] Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

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

[341] 8 C.F.R. § § 1003.2(c)(2), 1003.23(b)(4)(i).

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

[343] Id. at 1180.

[344] Id. at 1181.

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

[346] Wiedersperg, supra, at 1181.

[347] De Faria v. INS, 13 F.3d 422 (1st Cir. Nov. 16, 1993) (order vacating conviction upon which deportability was based was an appropriate basis on which the INS could seek reopening of deportation proceedings, and BIA acted within its broad discretion allowing reopening of deportation proceedings to allow the INS file substitute charges of deportability).