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)”).

BIA

POST CON RELIEF - CONVICTION - EFFECTIVE ORDER - CONVICTION VACATED FOR COURT'S FAILURE TO ADVISE DEFENDANT OF POSSIBLE IMMIGRATION CONSEQUENCES OF PLEA IS NO LONGER A CONVICTION FOR IMMIGRATION PUPOPRSES
Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006) (conviction vacated pursuant to Ohio Revised Code 2943.031, for failure of the trial court to advise the defendant of the possible immigration consequences of a guilty plea, is no longer a valid conviction for immigration purposes).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3525.pdf

First Circuit

POST CON RELIEF - EFFECTIVE ORDER
Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir.2000) (applying Pickering analysis to vacated convictions, although decision pre-dates Pickering; subsequent dismissal of charges, based solely on rehabilitative goals does not vitiate that original admission).

Third Circuit

POST CON RELIEF - EFFECTIVE ORDER
Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005) (approving the Boards distinction between "convictions vacated for rehabilitative purposes and those vacated because of underlying defects in the criminal proceedings").

Sixth Circuit

POST CON RELIEF - EFFECTIVE ORDER -THE DEFENDANT'S MOTIVE IN SEEKING TO VACATE IS IRRELEVANT
Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction.").

JUDICIAL REVIEW - PETITION FOR REVIEW - DISPOSITION - WHERE RECORD CONTAINED INSUFFICIENT EVIDENCE TO ESTABLISH DEPORTABILITY, REMEDY WAS REVERSAL WITHOUT REMAND FOR CONSIDERATION OF ADDITIONAL EVIDENCE
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003). (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, removal proceedings ordered terminated without remand for consideration of additional evidence).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, deportation proceedings ordered terminated without remand for consideration of additional evidence).

Seventh Circuit

POST CON RELIEF - ILLEGAL REENTRY - VACATED CONVICTION
United States v. Garcia-Lopez, 375 F.3d 586 (7th Cir. July 12, 2004) (prior conviction, vacated on technical grounds for failure of court to give required warnings of possible immigration consequences, still requires 16-level enhancement upon illegal reentry sentence since conviction was still in existence at time of deportation, even though conviction was vacated prior to illegal reentry).

Eleventh Circuit

POST CON RELIEF - VACATED CONVICTION IS A LEGAL NULLITY UNDER FEDERAL IMMIGRATION LAW CONTROLLED SUBSTANCES - INADMISSIBILITY - REASON TO BELIEVE ILLICIT TRAFFICKER
Garces v. U.S. Attorney General, 611 F.3d 1337 (11th Cir. July 27, 2010) (no contest plea to a later-vacated conviction and hearsay statements in the police report are insufficient to establish noncitizen was inadmissible for "reason to believe" he engaged in drug trafficking); see Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006) (a vacated conviction is a legal nullity for purposes of federal immigration law if the reason for vacatur is a constitutional, statutory, or procedural defect in the underlying criminal proceedings); cf. Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379-80 (BIA 2000) (the vacatur need not derive from the violation of a federal right necessarily; violation of a state right will be granted full faith and credit); see Matter of Adamiak, 23 I. & N. Dec. 878, 879-80 (BIA 2006) (a vacatur has no bearing on immigration proceedings if obtained under a rehabilitative statute or to help avoid "immigration hardships"); cf. Resendiz-Alcaraz v. U.S. Atty Gen., 383 F.3d 1262, 1267-69 (11th Cir. 2004) (a conviction expunged by completing probation held still a conviction for immigration purposes). PCN:4.6;CD4:11.5;AF:6.4;SH:4.28;CMT3:10.4

Other

POST CONVICTION RELIEF - ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")