Post-Conviction Relief for Immigrants

Post-conviction relief may mean little to a client if it comes too late to avert the adverse immigration consequences.  Thus, it is important that there is sufficient time remaining in immigration proceedings for immigration counsel to be able to take the criminal-court order vacating the conviction and turn it to use in immigration court, before the client is deported or the 90-day limit on filing a motion to reopen proceedings, after a final removal order, has passed.  See § § 10.15, et seq., infra.

            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.[41]  Where the legal basis of a finding of deportability has been nullified, a new deportation hearing may be warranted.[42]  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 and the conviction becomes non-final.[43] 

PRACTICE POINTER:  The new rules limiting the time for and number of motions to reopen immigration proceedings must be consulted in this connection.[44]

            A motion to reopen deportation proceedings in immigration court must be filed within 90 days after the deportation order becomes administratively final.  An order of the immigration judge becomes final when the time for taking an appeal to the BIA has expired 30 days after entry of the order.  An order of the BIA dismissing the noncitizen’s appeal is considered final when entered, and the noncitizen has 90 days from then to file a motion to reopen with the BIA in Falls Church, Virginia.  If the motion comes too late, it will be denied unless the immigration authorities join in the motion, although the BIA retains jurisdiction to reopen proceedings on its own motion thereafter.  It may be possible for the noncitizen to suggest that the BIA reopen the matter sua sponte.

            If absolutely necessary, counsel may file the motion to reopen timely (i.e., within 90 days of the BIA decision) Then, counsel can obtain the order in criminal court vacating the conviction thereafter, as long as the certified copy is provided to the BIA before the BIA has acted on the motion to reopen.  The order vacating the conviction should be submitted with the motion to reopen if at all possible and it is unclear whether the BIA will accept such a motion as timely filed.

[41] 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).

[42] Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453, 89 L.Ed. 2103 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

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

[44] 8 C.F.R. § § 3.2(c)(2), 3.23(b)(4)(i); see Douglas S. Weigle & Benjamin Landey, Motions to Reopen and Reconsider, in II 1997-1998 AILA Immigration and Nationality Law Handbook – Advanced Practice 268 (1997).