Where a conviction has been vacated on a ground of legal invalidity, and a federal sentence depends upon that conviction, it should be possible to reopen the federal sentencing proceedings and obtain a new sentence rendered without regard to the conviction that has been vacated.[348]

 

The same result should apply where a conviction has been vacated on a ground of legal invalidity, and the conviction forms an element of a criminal offense.  The law is less clear on this question, however.[349]

[348] See N. Tooby, Post-Conviction Relief for Immigrants § 6.11 (2004).

[349] Ibid.  See United States v. Padilla, 387 F.3d 1087 (9th Cir. Nov. 2, 2004) (conviction for felon in possession of firearm, under 18 U.S.C. § 922(g)(1), was not invalidated by post-conviction nunc pro tunc state court invalidation of underlying felony conviction; conviction remains valid since defendant was a felon at the time of the federal conviction).

 

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

Other

CONVICTION " NOT GUILTY BY REASON OF INSANITY
Whether an plea of not guilty by reason of insanity plea is a conviction for immigration purposes is still unsettled. In an insanity case, the actual plea is not "guilty except for ..." It is "not guilty by reason of insanity." That is because insanity negates an essential element of the offense: the intent. Therefore, a "not guilty by reason of insanity" finding is arguably not a conviction. Unfortunately, in California and other states, you first have to enter an actual guilty plea prior to being found not guilty by reason of insanity. One could argue that the ultimate finding of not guilty was equivalent to post-conviction relief based on a substantive flaw in the proceedings. Namely, the lack of intent, and therefore, lack of guilt. Another available argument would be based upon Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010), on the theory that no criminal sentence/fine can be imposed following a guilty plea, in some states like Oregon, and the (civil) commitment that can follow is not a punishment/penalty/restraint under INA 101(a)(48)(A)(ii). In Corpuz v. Holder, 697 F.3d 807 (9th Cir. Aug. 31, 2012), the court, in dictum found otherwise, without explanation, but then whittled off enough time through constructive good time credits to enable a respondent to qualify for 212(c) relief with 4 years and 10 months imprisonment, crediting most of the time in civil lock up. Thanks to Jon Garde, Lisa Brodyaga, and Joseph Justin Rollin