Post-Conviction Relief for Immigrants

In Beltran-Leon v. INS,[82] the Ninth Circuit handed down a troublesome and confused decision holding that a California state-court decision vacating a drug conviction pursuant to a writ of audita querela did not remove the conviction for immigration purposes, because the judgment was not vacated on a ground of legal invalidity.  The court therefore held the BIA was correct in denying the motion to reopen deportation proceedings to allow application for adjustment of status, and dismissed the appeal for lack of jurisdiction.

            In Beltran, the Ninth Circuit discussed federal law holding it is improper for a federal court to grant a writ of audita querela, where no legal defect in a federal conviction appears, solely on equitable immigration grounds.[83]  The court noted, in a footnote: “Doe dealt with a writ of audita querela issued by a federal rather than a state court.  The principles remain the same, however.”[84] 

            The Beltran-Leon holding suffers from a number of defects, however, and should be challenged in other circuits.  (a) The federal law referred to states the federal court may not grant the writ in the first place.  It does not say what happens when, as here, the court does grant the writ vacating the conviction.  (b) This law is federal law, not state law.  Nowhere is it written that the state courts may not grant a state writ of audita querela just because the federal courts do not do so under similar circumstances.  Under principles of federalism and comity, federal courts cannot control the requirements under which a state court grants a state writ.[85]  State habeas standards and state coram nobis standards are completely different than standards for the analogous federal writs.  (c) Not surprisingly, the Ninth Circuit cited no authority for the dubious proposition quoted above.  (d) Even assuming the state court erroneously (under state law) granted the writ and erroneously (under state law) vacated the state conviction, the federal immigration court is required to accept the final state-court judgment which cannot be collaterally attacked in federal immigration court.  See § 4.5(D), supra.  After all, it is the state conviction that triggers the adverse immigration consequences.  If the state erases the state conviction, then it no longer exists to trigger them.

            Even if the Beltran-Leon decision governs, it should have practically no impact on the day-to-day work of obtaining post-conviction relief for immigrants, since the decision can be distinguished as limited to audita querela cases in which no ground of legal invalidity was found.[86]

            While it may be ineffective to vacate a conviction, federal audita querela has been found effective as a basis to bar immigration authorities from inflicting collateral immigration consequences on a respondent on the basis of a legally valid conviction where to do so would shock the conscience.  See § 5.45, infra.

            Moreover, in nearly all post-conviction cases, it is necessary for counsel, in the words of the court in Beltran, to “identify [a] new defense or legal defect[] in the criminal proceedings” (thus providing a ground on which to distinguish Beltran).  The petitioner in nearly every case will not “request[] that the conviction be set aside solely in order to prevent deportation . . . .”  And the normal habeas, coram nobis, or motion to vacate will therefore “remove the legal basis of [the] conviction for purposes of application of federal [immigration] law.”[87]

To ensure that an order vacating a conviction or sentence will be honored in immigration court, the face of the documents (equivalent to the “record of conviction”) must establish that the order was entered on the basis of some ground of legal invalidity.  If this is the case, it should not matter whether the adverse immigration consequences are also made known to the criminal court that issued the order, as this additional fact will not detract from the fact that the criminal conviction or sentence was legally void.[88]  The immigration courts in general do not go behind the face of the record in assessing the impact of criminal judgments, and they should not do so here.  See § 4.5 (D), supra.

[82] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[83] See Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997).

[84] Beltran-Leon v. INS, supra, n.1.

[85] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) (referring to federal obligation to give full faith and credit to state court judgments).

[86] In Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.31 (9th Cir. 2000), the court was careful to limit Beltran-Leon to its facts:  “At oral argument, INS counsel cited our decision in Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998), in support of the claim that we have already established the rule that guilt is sufficient, without more, to support a removal order.  Of course, if that were true with respect to offenses covered by the Federal First Offenders Act, then Beltran-Leon would be in conflict with Garberding and Paredes.  The INS’s interpretation of Beltran-Leon is far too broad.  In that case we said only that a particular common law writ — the writ of audita querela — cannot be given effect for deportation purposes absent a defect in the underlying legal proceedings. Id. at 1380.  We relied on Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997), in which we held that for a writ of audita querela to issue, there must be a legal defect in the underlying conviction or sentence, which was absent in Beltran-Leon’s case.  Neither Petitioner here has sought the benefit of the writ of audita querela; instead both rely on state rehabilitation statutes.  In addition, we note that Beltran-Leon was convicted of the sale of cocaine, and therefore could not have received relief under the Federal First Offender Act.”  Id. at 747 n.31.

[87] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[88] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).