Post-Conviction Relief for Immigrants

(D)  Conviction-Based Grounds of Deportation and Inadmissibility.  There are many crime-related grounds of deportation and inadmissibility.[1]  Most of them require a final criminal conviction.[2]  If a final conviction exists that falls within any one or more of several immigration-law categories of criminal offenses, then a ground of deportation exists and the noncitizen may be deported on account of that qualifying conviction.  Deportation on account of a criminal conviction can be averted under four circumstances:  (1) If the procedures in criminal court were insufficient to constitute a final criminal conviction, (2) if the nature of the conviction does not in fact fit within any of the deportable categories of criminal offenses, (3) if the conviction can be effectively eliminated by post-conviction relief in criminal court so that the immigration authorities accept that the conviction no longer exists to trigger deportation, or (4) if some form of relief from deportation can be obtained in immigration court, so that the noncitizen is not in fact deported despite the existence of the conviction.

            Three of these four topics, (1) the nature of a final conviction, (2) the definitions of the deportable categories of conviction, and (4) the availability of relief from deportation in immigration court, are beyond the scope of this book.[3]  This volume concentrates on the third of these four topics: the process of obtaining effective post-conviction relief in criminal courts to avoid the adverse immigration effects of criminal convictions and sentences.

            While this work cannot include detailed descriptions of the post-conviction systems of each of the 50 states plus the federal jurisdictions, a general overview is offered, together with many federal constitutional grounds for vacating convictions and sentences that will be useful in any jurisdiction.

[1] INA § 237, 8 U.S.C. § 1227.

[2] The new 1996 immigration law, IIRAIRA, for the first time enacted a statutory definition of “conviction.” INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[3] They are addressed in N. Tooby & K. Brady, Criminal Defense of Immigrants (2003); K. Brady, California Criminal Law and Immigration (2003); D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (2004), among other places.  See Bibliography, http://www.CriminalAndImmigrationLaw.com.