Post-Conviction Relief for Immigrants

            As discussed above,[77] the BIA in Matter of Pickering 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.”[78]  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.[79]

            A court order vacating a criminal conviction on the merits or because of a legal invalidity or constitutional defect on one hand is effective to eliminate adverse immigration consequences resulting from the conviction,[80] whereas a court order erasing the conviction on the basis of rehabilitative considerations, sometimes called an “expungement,” would not, in most circumstances, eliminate the conviction for purposes of immigration proceedings.[81]

[77] See § 4.5, supra.

[78] Id. at 625.

[79] 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); 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).

[80] Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981); Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100 (9th Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

[81] 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F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n. 8 (4th Cir. 2001) (non-precedential - foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS,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).