been eliminated as a source of adverse immigration consequences.[3]  This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, and even a petition for a writ of audita querela — so long as the order recites that the conviction is vacated because the conviction is legally invalid.  In the Fifth Circuit, a recent decision in dictum disputes this universal rule,[4] but has not been followed by the BIA outside of the Fifth Circuit, and should be contested as dictum even within the Fifth Circuit. See § 4.5, infra.

 

Second, if a conviction is vacated on purely humanitarian grounds, solely to eliminate the immigration consequences, or on the basis of state rehabilitative statutes, without any claim that the conviction is legally invalid, the immigration authorities may be expected to argue in immigration court that the order does not effectively remove the adverse immigration consequences of the conviction.[5]

 

Third, the immigration authorities should not be permitted, in immigration proceedings, collaterally to attack a final state or federal criminal court order setting aside a conviction by arguing it was obtained on humanitarian grounds or solely to eliminate the immigration consequences, when the face of the record demonstrates it was granted on a ground of legal invalidity.[6] 

 

            Fourth, the immigration authorities may challenge orders vacating convictions on the basis that they are beyond the jurisdiction of the criminal court.  If this position is sustained, and if the immigration authorities can actually establish lack of jurisdiction, the vacated conviction would continue to exist for immigration purposes.[7]

[3] See § 4.3, infra.

[4] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).

[5] See § 4.8, infra.

[6] See § 4.11, infra.

[7] See § 4.12, infra.

First Circuit

POST-CON - EFFECTIVE ORDER - NUNC PRO TUNC
Lawrence v. Gonzales, ___ F.3d ___, 2006 WL 1195679 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA 212(c) is unavailable where the new plea was not entered nunc pro tunc).

Third Circuit

POST CON RELIEF - EFFECTIVE ORDER
Cruz v. Atty Gen. of the US, ___ F.3d ___ (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated). http://caselaw.lp.findlaw.com/data2/circs/3rd/052764p.pdf

Other

POST CON - EFFECTIVE ORDER
N. Tooby, Recent Developments Concerning Effective Orders Vacating Convictions, 11 Bender's Imm. Bull. 534 (Jun. 1, 2005).