Post-Conviction Relief for Immigrants

The government is increasingly challenging the effectiveness of a criminal-court order that purports to vacate or eliminate a criminal conviction, for purposes of eliminating the adverse immigration consequences of the conviction.  It is therefore important to be very clear on what is required effectively to eliminate a conviction for immigration purposes.

This chapter describes the nature of an order vacating a criminal conviction that will be accepted by the immigration authorities as eliminating its immigration consequences.  The topics of the effectiveness of orders reducing sentences,[1] pardons, and foreign post-conviction relief are not covered in this chapter.[2]

[1] See Matter of  Song, 23 I. & N. Dec. 173 (BIA 2001) (holding that the new definition of “conviction” and the decision of Matter of Roldan do not alter the fact that vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony because the latest sentence controls for immigration purposes).

[2] See Chapter 7, Vacating or Reducing the Sentence (including Motions to Reduce the Level of the Offense), and Chapter 8, State and Federal Rehabilitative Relief, both infra.