Vacating the conviction[8] in its entirety — by direct appeal,[9] habeas corpus, coram nobis, motion to withdraw the plea or vacate the conviction, or the like[10] — will eliminate any adverse immigration consequences (along with all other consequences) flowing from the conviction.  When a judgment is vacated, the conviction is eliminated ab initio as having been illegal from the time it first came into existence.[11] 

 

Well-settled federal law holds that “Such an order or writ [vacating a criminal conviction] may prevent an attempted deportation grounded upon the vacated conviction.  Matter of Sirhan, et al., 13 I. & N. Dec. 592, 597 (BIA 1970).”[12]  The Ninth Circuit has repeatedly held that post-conviction relief vacating criminal convictions eliminates them for immigration purposes.[13]  The only circuit to reject this rule is the Fifth Circuit, in a decision of dubious validity.[14]

 

PRACTICE POINTER:  To be effective in eliminating the immigration consequences of a conviction, it is sufficient if the order vacating the conviction specifies that the judgment is vacated “in its entirety ab initio as legally invalid.”  If the court can be persuaded to do so, it is stronger if the order specifies the particular ground of invalidity, for example: “on grounds of ineffective counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.”  This type of order effectively eliminates the adverse immigration consequences of a criminal conviction, even under recent BIA authority.  See § 4.6, infra.

 

[8] Congress recently redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA), § 322, amending Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[9] If a noncitizen prevails on a direct appeal of a criminal conviction that resulted in an order of removal, the reversal of the conviction constitutes a basis on which the removal order may be reopened.  DeFaria v. INS, 13 F.3d 422 (1st Cir. 1993).

[10] United States ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

[11] “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (2003), § 4.2(a), citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[12] Hernandez-Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976).

[13] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled noncitizen to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport noncitizen whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of alien based on invalid conviction could not be considered “lawfully executed”); United Stated ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).

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

BIA

INADMISSIBILITY " DATE OF CONSIDERATION " VACATED CONVICTION
Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

First Circuit

POST-CON - EFFECTIVE ORDER
De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, "had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.")

Fifth Circuit

[DECISION VACATED - see below] POST-CONVICTION - TEXAS - VACATED CONVICTIONS
United States v. Discipio, __ F.3d __, 2004 WL 912597 (5th Cir. April 29, 2004) (following Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), state conviction remains for immigration purposes, even though convicting court granted motion for new trial based upon substantive flaws in underlying proceeding)      In United States v. Discipio, __ F.3d __, 2004 WL 912597 (5th Cir. April 29, 2004), the first published Fifth Circuit court decision to cite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (convictions vacated based upon legal invalidity of underlying proceedings remain valid for immigration purposes), the three member panel reluctantly followed the holding of Renteria-Gonzalez, but was extremely critical of the decision, calling the results of the decision "patently absurd." United States v. Discipio, at *2.      The decision of one panel of the Fifth Circuit cannot overrule the decisions of another panel, noting that "[u]ntil the Fifth Circuit en banc or the Supreme Court reforms Renteria-Gonzalez, we must apply that decision as written." Id. at *3; see United States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003). Nonetheless, nearly the full length of the decision in Discipio was spent criticizing the logic and holding of Renteria-Gonzalez. The court went to far as to continue the stay of deportation for Discipio, "until the Clerk of this Court issues the mandate in this case," to prevent further consideration of the case from becoming moot. Id. The panel made no attempt to distinguish the Discipio from Renteria-Gonzalez on its facts.      The specific facts and BIA decision in this case may have had a part in setting the tone of the Discipio decision. The unpublished Board of Immigration Appeals case upon which this appeal was based, In re Discipio, A19 321 919, 2004 WL 880306 (BIA March 3, 2004) (unpublished), shows that the respondent was convicted, and apparently lived in Massachusetts. Although the respondent was initially detained by the INS in Boston, he was transferred to the detention facility at Oakdale, Louisiana, within the jurisdiction of the Fifth Circuit.      The BIA upheld the Immigration Judges denial of a motion for change of venue, stating that although the respondents family lived in Boston, their difficulty in travelling to Oakdale to attend proceedings was irrelevant, as the respondent had failed to indicate that he was going to call any of his family as witnesses. The BIA also rejected as "forum shopping" the respondents arguments that he was prejudiced by being brought under the jurisdiction of the Fifth Circuit and Renteria-Gonzalez, and that he should be subject to the law of First Circuit, as the only reason he fell under the jurisdiction of the Fifth Circuit was his transfer by the INS. Finally, the BIA stated that neither the BIA nor the Immigration Court has any jurisdiction over decisions of the INS to transfer a noncitizen from one jurisdiction to another, citing Matter of Rahman, 20 I. & N. Dec. 480 (BIA 1992); Matter of Victorino, 18 I. & N. Dec. 259 (BIA 1982); and 8 C.F.R. 1003.14(a), 1003.20(b).      Look for a petition for rehearing or certiorari to be filed in this case in the future. [DECISION VACATED] Discipio v. Ashcroft, ___ F.3d ___, 2005 WL 1635190 (5th Cir. July 13, 2005) (vacating prior panel decision, 369 F.3d 472 (5th Cir. 2004), and remanding to the BIA to allow government to terminate removal proceedings pursuant to Matter of Pickering, 23 I. & N. Dec. 621, 2003 WL 21358480 (BIA 2003), since the convictions in this case had been vacated on the merits on the basis of procedural and substantive defects and were thus no longer valid convictions for purposes of immigration proceedings). In short, the DHS indicated that it was going to follow Matter of Pickering, and move to terminate proceedings, despite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.2002) (holding that a conviction remains valid regardless of the reason it was vacated). The noncitizen Petitioners petition for rehearing en banc (which could have resulted in overruling Renteria), was therefore denied as moot. As Descipio (which was very critical of Renteria) was a panel decision only (and even though it is published), this may mean that the BIA will still consider itself bound to apply Renteria in the future. 

Thanks to Lisa Brodyaga

Sixth Circuit

POST CON RELIEF " EFFECTIVE ORDER " BURDEN
Barakat v. Holder, 621 F.3d 398 (6th Cir. Aug. 18, 2010) (government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons).

Ninth Circuit

POST CON RELIEF " REASON TO BELIEVE
Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.

POST CON RELIEF " EFFECTIVE ORDER " ARGUMENT BIA MUST ACCEPT STATE COURT POST-CONVICTION NUNC PRO TUNC ORDERS VACATING CONVICTIONS
Amponsah v. Holder, 709 F.3d 1318 (9th Cir. Mar. 22, 2013) (BIA's blanket rule against recognizing state courts' nunc pro tunc adoption decrees constitutes an impermissible construction of the term child in 8 U.S.C. 1101(b)(1)(E), and thus is not due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council , Inc., 467 U.S. 837, 843 (1984); the BIAs interpretation is unreasonable because it gives little or no weight to the federal policy of keeping families together, fails to afford deference to valid state court judgments in the area of domestic relations, which is primarily a matter of state concern, and addresses the possibility of immigration fraud through a sweeping blanket rule rather than considering the validity of nunc pro tunc adoption decrees on a case-by-case basis).

POST CON RELIEF " EFFECTIVE ORDER " GOVERNMENT HAS BURDEN OF PERSUASION THAT STATE COURT VACATED A CONVICTION SOLELY FOR IMMIGRATION PURPOSES
Reyes-Torres v. Holder, ___ F.3d ___, ___, 2011 WL 1312570 (9th Cir. Apr. 7, 2011) (the government bears the burden to prove that a conviction was vacated solely for immigration purposes, and is thus still a conviction for immigration purposes, and the BIA must make this determination before the circuit court can address it).

POST CON RELIEF - EFFECTIVE ORDER - NINTH CIRCUIT FOLLOWS PICKERING TO HOLD CONVICTION VACATED FOR SUBSTANTIVE OR PROCEDURAL DEFECT IS ELIMINATED FOR IMMIGRATION PURPOSES
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROVING CONVICTION STILL EXISTS AFTER VACATUR HAS BEEN ISSUED
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove "with clear, unequivocal and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences.") (original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

WEAPONS - FELON IN POSSESSION - LATER DISMISSAL OF UNDERLYING FELONY
United States v. Padilla, __ F.3d __ (9th Cir. Nov. 12, 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).

Other

POST CON RELIEF " EFFECTIVE VACATUR " FIFTH CIRCUIT
In Padilla v. Kentucky, the Supreme Court implied that a conviction that was vacated on a ground of legal invalidity, such as ineffective assistance of counsel, no longer existed for immigration purposes. This rejects the argument that the 1996 statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), does not expressly state that post-conviction relief eliminates a conviction for immigration purposes and therefore post-conviction relief does not do so. Padilla therefore suggests that the Fifth Circuit decisions in Discipio v. Ashcroft, 417 F.3d 448, 450 (5th Cir. 2005) and Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002) are no longer good law. Thanks to Dan Kesselbrenner.