Post-Conviction Relief for Immigrants

 

            This principle has not been altered by the IIRAIRA new definition of conviction.[15]  For example, the Ninth Circuit has recently reaffirmed this principle, in dictum, on the basis of an INS concession:

 

The INS concedes, and we agree, that Congress did not intend that a conviction subsequently overturned on the merits (either because of a finding of insufficient evidence or because of a basic procedural inadequacy, such as a violation of the right to counsel), could serve as the basis for deportation.  Thus, the INS acknowledges that a court’s subsequent treatment of a conviction, after it has been entered, may in some cases serve to prohibit its use for immigration purposes.[16]

 

The court continued:

 

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant’s guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[17]

 

            Moreover, in a thoughtful analysis of the context and content of the new definition of conviction, the Ninth Circuit concluded that the purpose of the new definition was to alter the nature of the disposition that is considered a conviction in the first place, rather than to change any part of the law affecting the circumstances under which a conviction would be considered to have been eliminated by some later judicial action.[18]

 

Even if there is no explicit order vacating a conviction, if the criminal court, after a motion or petition to vacate a conviction has been filed on a ground of legal invalidity, grants a new sentence that could only be imposed for a non-deportable conviction, the immigration courts must infer the deportable conviction has been vacated, and a new nondeportable conviction substituted.  In Sandoval v. INS,[19] the Seventh Circuit granted a petition for review, and remanded the case to the BIA for entry of an order terminating deportation proceedings that had been instituted on the basis of an initial felony conviction of possession of more than 30 grams of marijuana.  The defendant had filed a post-conviction motion[20] in the criminal court claiming the plea was involuntary because it had been based on defense counsel’s mistaken advice not to worry about any immigration consequences.[21]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, which is only possible if the defendant is a first-time offender convicted of possession of 30 grams or less of marijuana.

 

In holding that the criminal court had implicitly vacated the original judgment on a ground of legal invalidity, the Seventh Circuit distinguished the BIA decision in Matter of Roldan Santoyo,[22] on the grounds that the state court judge had not used a state rehabilitative statute but rather used a statute authorizing him to vacate a conviction or sentence on grounds of a constitutional violation.

            Therefore, the new definition of conviction does not alter the long-standing rule that a criminal court order vacating a conviction on some ground of legal invalidity effectively eliminates the conviction for all immigration purposes.  Since the result of issuance of the order is to vacate the conviction completely, there is no conviction to be held against the defendant for immigration purposes.[23]  The INS has conceded as much in other cases as well.[24]

 

Unfortunately, the Fifth Circuit has taken the contrary view, refusing to halt removal proceedings where a federal conviction was vacated under the All Writs Act, 28 U.S.C. § 1651.  In Renteria-Gonzalez v. INS,[25] without citing any of the cases discussed herein, the court found in a conclusory fashion that “vacated” convictions remain valid for immigrations purposes. The court’s predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[26] 

 

In a special concurrence, Judge Benavides aptly pointed out that the majority opinion fails to recognize the distinction between convictions vacated on legal grounds as opposed to those erased under state rehabilitative statutes:

 

The majority states that five circuits, including this Court, have concluded that a “vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A).” Maj. op. at 835.  Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative provisions or expunged convictions remain valid for the purposes of § 1101(a)(48)(a), I would emphasize that none of the convictions in the five cases cited by the majority was vacated based on the merits of the underlying criminal proceeding, i.e., a violation of a statutory or constitutional right with respect to the criminal conviction.  Indeed, as set forth below, two of those sister circuit opinions contain language recognizing a distinction between the two categories of vacaturs: vacaturs on the merits versus rehabilitative vacaturs.[27]

 

The concurrence further explained that because Renteria’s conviction was not vacated on legal grounds, the majority opinion cannot be understood as altering the long-standing definition of conviction:

The common thread running through the above cases is that convictions set aside or vacated based on events subsequent to the conviction — not because of a defect in the conviction itself — constitute convictions within the meaning of § 1101(a)(48)(A). Likewise, in the instant case, Renteria’s conviction was not vacated because there was a valid challenge to the underlying criminal proceedings. Thus, although I agree that the above cases indicate that Renteria’s vacated conviction qualifies as a conviction under § 1101(a)(48)(A), I would tailor the analysis more narrowly to the facts at issue. Specifically, I would distinguish the instant vacatur from cases involving convictions vacated because of a defect in the criminal proceedings. . . . 

 

Applying the majority’s holding to vacaturs based on the merits would result in what I believe to be an absurd result and certainly not in keeping with the notion of American judicial traditions. For instance, if the courts determine there was insufficient evidence, an involuntary guilty plea or a violation of other constitutional or statutory rights, we customarily vacate such a conviction.  It would seem to be an absurd result to interpret the provision to encompass convictions that state or federal courts have deemed deficient on the merits. In my view, such a judicial determination operates to negate a conviction with respect to the merits.  In summary, I do not believe the majority opinion should be understood to indicate that a conviction that has been vacated or reversed based on a defect in the underlying criminal proceeding constitutes a conviction under § 1101(a)(48)(A).[28]

 

Although the specifics of the order vacating the conviction are not explained in either opinion, the concurring judge views the order as vacating the conviction on humanitarian grounds, rather than as legally invalid.  As a result, he finds that any discussion of the effectiveness of a conviction vacated on the merits is “entirely dicta in that the case at bar did not involve such a vacatur.”[29]

 

Thus, although the immigration authorities are likely to continue pressing the argument that a vacated conviction remains valid under the IIRAIRA definition of conviction and citing this decision in support, it should be pointed out that the Fifth Circuit’s holding in this regard is dictum and should be disregarded.  At least one Texas district judge has held that a state court order vacating a conviction for aggravated assault on federal constitutional grounds was effective to eliminate the conviction for immigration purposes.[30]

 

            In Matter of Pickering,[31] however, the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[32]  This decision expressly states it does not change the pre-existing rule that a vacatur which is based on a ground of legal invalidity existing at the time the conviction first arose is effective in eliminating the immigration consequences of a criminal conviction.[33]

            To be effective, post-conviction counsel must obtain a court order in the original criminal case vacating or setting aside the conviction that meets a number of specific requirements.

 

[15] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[16] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000) (footnote 30 omitted).

[17] Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).

[18] “Instead, the purpose of the amendment [the new statutory definition of ‘conviction’] appears to have been to establish the time at which a particular type of proceeding, specifically, deferred adjudication, results in a conviction for immigration purposes — not to alter the long-standing rule that a conviction entered but subsequently vacated or set aside cannot serve as the basis for a deportation order.”  Lujan-Armendariz v. INS, 222 F.3d 728, 745 (9th Cir. 2000).

[19] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[20] Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, para. 122 ff., now codified as Ill.Comp.Stat.Ann. 5/122-1 (West Supp. 2000).

[21] “It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.”  People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985).  Reliance on counsel’s mistaken immigration advice can render the plea involuntary.  See id.; People v. Luna, 570 N.E.2d 404, 406-07 (Ill.App.Ct. 1991) (holding that post-conviction petition, which alleged that counsel failed to advise noncitizen that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

[22] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), removal orders reversed sub nom. Lujan Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[23] Hernandez Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. 592 (BIA 1970); see also Matter of O, 7 I. & N. Dec. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. Dec. 677, 680 (BIA 1979).

[24]  In Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971), the INS pointed out that “if petitioner is successful in challenging his conviction in the court which rendered the judgment, he may move to reopen the deportation proceeding.”  (Id. at p. 1089.)  Petitioner did so, and the Ninth Circuit, on rehearing, recognized that the criminal court “has now vacated the sentence . . . upon which the Order of Deportation sought to be reviewed was based.”  (Ibid.)  The court therefore remanded the matter to the INS, with directions to give the matter further consideration in light of the vacation of the sentence.  (Ibid.)

[25] Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002).

[26] Id. at 812 (“Although it may seem counterintuitive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws.”)

[27] Id. at 820-21 (Benavides, J., specially concurring), citing Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n.8 (4th Cir. 2001) (foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1312-17 (11th Cir. 2001); Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[28] Renteria, 322 F.3d at 822-823 (Benavides, J., specially concurring).

[29] Id. at 843 n.4.  

[30] Toledo-Hernández v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tex. Jan. 28, 2004) (unpublished).

[31] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

 

[32] Id. at 625.

 

[33] For an excellent analysis of Pickering, see Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103 (July 1, 2003).  For a description of effective orders to vacate convictions, see N. Tooby, Effective Post-Conviction Relief: Eliminating Criminal Convictions for Immigration Purposes, in II AILA Handbook on Immigration and Nationality Law – Advanced Practice (2001-2002); N. Tooby & K. Brady, Criminal Defense of Immigrants § 10.2-10.7 (3d ed. 2003); N. Tooby, Aggravated Felonies § 7.2 et seq. (2003). See also Immigration Law and Crimes § § 4.2, 4.20 (2003).