Post-Conviction Relief for Immigrants

An order vacating a conviction as legally invalid eliminates the conviction generally, and the vacated conviction may not, therefore, be used as a basis for deportation, removal, exclusion, statutory ineligibility to show good moral character, or any other immigration purpose.  For example, where the respondent vacated the criminal convictions upon which a 1994 OSC was filed, and the INS was thereafter proceeding upon a 1999 Amended OSC grounded upon a 1999 firearms conviction, the respondent was entitled to apply for cancellation of removal under post-IIRAIRA law even though the deportation proceedings had originally been initiated under prior law.[69]

            It is important to be aware of less obvious effects of a conviction, as well, which may also be eliminated if the conviction is vacated.  For example, if a noncitizen is charged with removal on account of a conviction of a crime involving moral turpitude for which a sentence of one year may be imposed, and that maximum sentence applies because of the existence of a prior conviction which has now been vacated, the noncitizen is no longer removable.  The deportation ground is written in the present tense (“sentence . . . may be imposed”),[70] and the condition precedent to the higher maximum sentence no longer exists.  Therefore, it is no longer true that a one-year sentence “may be imposed.”  Therefore, the conviction no longer triggers removal.  (This argument does not apply as well to the petty offense exception situation, since that statute is written in the past tense, to apply if the maximum sentence “did not exceed” one year.)[71]  Similarly, a second federal conviction of telephone wagering constitutes an aggravated felony.[72]  If the first conviction is vacated as legally invalid, arguably the second offense is no longer a second conviction, and thus cannot constitute an aggravated felony. 

[69] Welch v. Reno, 101 F.Supp.2d 347 (D. Md. 2000).

[70] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II).

[71] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[72] INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J) (“an offense described in section 1084 (if it is a second or subsequent offense)”).