In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[73]  Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.  See § § 10.15, et seq., infra.[74]  A deportation proceeding may also be reopened, even after a criminal conviction has initially become final, if a criminal court accepts a late appeal of the criminal conviction.  The conviction is now on direct appeal, and therefore nonfinal, and thus is not a sufficient basis on which to ground a deportation or removal order.  See § 5.25, infra.[75]

 

The rule is the same in criminal proceedings:  “[A] defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction.”[76]

[73] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[74] Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453, 89 L.Ed. 2103 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

[75] See Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[76] United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999), quoted in United States v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001), cert. denied, 534 U.S. 969, 122 S.Ct. 383, 151 L.Ed.2d 293 (2001).

BIA

POST CON RELIEF - EFFECTIVE ORDER - MOTION TO REOPEN - BURDEN OF PROOF THAT CONVICTION HAD NOT BEEN VACATED SOLELY FOR IMMIGRATION PURPOSES IS ON RESPONDENT IN MOTION TO REOPEN
Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007) (noncitizen seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes). http://www.usdoj.gov/eoir/vll/intdec/vol24/3578.pdf

Note: It is unclear from the facts of this case whether the noncitizen was charged with inadmissibility or deportability. Therefore it is unclear who bore the original burden of proof. The BIA specifically distinguishes this situation from that when a noncitizen is not yet subject to a final order of removal. The BIA also notes a circuit split on this issue in the motion to reopen context. Compare Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir. 2006) with Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006).

Second Circuit

POST CON RELIEF - EFFECTIVE ORDER - FULL FAITH AND CREDIT
Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) (amendment of the removable conviction was secured solely to aid petitioner in avoiding immigration consequences and was not based on any procedural or substantive defect in the original conviction; BIA did not violate full faith and credit by failing to honor the amendment, since post-conviction motion stated it was brought for immigration purposes and failed to identify any substantive or procedural defects in the conviction), citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005).

Ninth Circuit

POST CON RELIEF - EFFECTIVE ORDER - COMITY AND RESPECT FOR STATE COURTS' DECISIONS - FULL FAITH AND CREDIT
The Ninth Circuit has recognized that a proper respect for state and federal courts requires that their orders be considered valid and effective, unless they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569 (9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the United States Supreme Court stated well more than a century ago:

"There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears; and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings, from the initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated, becomes a part of their record; which thenceforth proves itself, without referring to the evidence on which it has been adjudged."

Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490 (1836) (quotation in original, supporting citations omitted). "Principles of comity, finality and economy all militate in favor of placing the burden of attacking court judgments and orders on the party who seeks to upset them." Id. The Board itself has acknowledged and applied these same principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (rejecting the INS's argument that the Board should go behind a state court vacatur of judgment to determine whether it was entered for purposes of avoiding removal, according full faith and credit to the state court judgment, and relying on 28 U.S.C. 1738, which requires federal courts to accord full faith and credit to state court judgments). At least where a substantive defect must be found to support a vacatur, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) does not require a different result.

As the Ninth Circuit previously held, "[c]ertain areas of criminal regulation are beyond Congress's reach[,]" even in the immigration arena, which Congress possesses exclusive authority to regulate. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 - 914 (9th Cir. 2004). The Board has no authority to reach into the merits of a change of plea proceeding; that proceeding was governed by, and carried out pursuant to, state law. Accordingly, the vacatur of a state conviction must be accorded full faith and credit by the Board and by the Court.

Thanks to Deborah S. Smith.