Post-Conviction Relief for Immigrants

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).