The BIA will not “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.  See § 4.5 (D), supra.[104]  The BIA rejected the Service’s argument that any conviction vacated for purposes of avoiding removal, rather than based on a legal defect in the criminal proceedings, remains a conviction under the INA; rather, a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute.[105] 

 

            It is well established that an alien may not collaterally attack the constitutional validity of a state-court criminal conviction in immigration court.[106]  For the same reasons, the immigration authorities cannot go behind a facially valid criminal court order vacating a conviction.

 

In general, as an administrative agency, the DHS (or EOIR) has no power to adjudicate the validity of convictions underlying deportation proceedings.[107]  The proper forum in which to challenge a conviction is the criminal court and not a proceeding before the Executive Office for Immigration Review.[108]

 

            This rule should also apply against the government: it is a jurisdictional restriction on the power of the immigration courts, and should apply equally to the noncitizen and the Service.  By analogy to criminal cases, there is a due process argument that a procedural rule, such as this one, must be applicable equally to both parties in order to pass constitutional muster.  The Due Process Clause speaks “to the balance of forces between the accused and his accuser. [Citation.]”[109]  Thus, the United States Supreme Court has “been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial. [Citations.]”[110] 

 

            The Seventh Circuit handled this issue in a slightly different way, holding the INS had not established that the state judge acted without authority under state law when implicitly vacating a judgment of a deportable marijuana conviction, and imposing a sentence that could only be imposed for a non-deportable conviction of first-offense possession of 30 grams or less of marijuana:

 

The INS also alleges that the modification was entered solely for immigration purposes, and is thus ineffective.  This allegation is unfounded.  The judge’s modification was in response to Sandoval’s properly filed motion stating a cognizable claim of ineffective assistance of counsel.  That Sandoval may have filed his motion in response to the threat of deportation is irrelevant.  Further, even if the state court judge’s decision to modify Sandoval’s sentence was motivated by the consequences of the federal immigration law, that fact would not render the modification ineffective for immigration purposes.  See Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979); Matter of O’Sullivan, 10 I. & N. Dec. 320, Interim Decision 1294 (BIA 1963).[111]

 

The court thus held the BIA and IJ erred in finding respondent deportable, and remanded for entry of an order terminating deportation proceedings.

 

[104] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[105] Id.

[106]  Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir. 1993); Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985); Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977).

[107] Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).  Cf. Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) (plea procedurally defective and conviction set aside); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) (evidence of vacation of judgment available had counsel been given proper notice).

[108] Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985); Ramirez-Juarez v. INS, 633 F.2d 174 (9th Cir. 1980); Wing v. INS, 46 F.2d 755 (7th Cir. 1931); De La Cruz v. INS, 951 F.2d 226 (9th Cir. 1991) (INS has no power to adjudicate validity of state convictions where alien alleges ineffective assistance of counsel in failing to inform of deportation consequences of guilty plea); Immigration Law and Crimes, § 4.1, n.1 (2003).

[109] Wardius v. Oregon, 412 U.S. 470, 474 (l973) [footnote omitted].

[110] Id., at p. 474 n.6; see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 104 L.Ed.2d 557, 565 (l989); id., at p. 575 [concurring opinion of Scalia, J.]; Washington v. Texas, 388 U.S. 14, 24-25 (l967) [concurring opinion of Harlan, J.].

[111] Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001) (emphasis supplied).

Second Circuit

POST CON RELIEF - EFFECTIVE ORDER - GOVERNMENT HAS BURDEN OF PROOF OF CONTINUED EXISTENCE OF CONVICTION
Saleh v. Gonzales, ___ F.3d ___, ___ n.4, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the Government bears the burden of proving, by clear and convincing evidence, that Saleh is removable . . . ."), citing 8 U.S.C. 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465 F.3d 263, 268-69 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005).

Fifth Circuit

POST-CONVICTION - NUNC PRO TUNC ORDER EFFECTIVE
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas courts nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) rule that vacated conviction remains a conviction for immigration purposes).

Ninth Circuit

CONVICTION - RESPONDENT MAY NOT ATTACK VALIDITY OF CONVICTION IN IMMIGRATION PROCEEDINGS, INCLUDING 2241 IMMIGRATION HABEAS
Resendiz v. Kovensky, ___ F.3d ___, 2005 WL 1501495 (9th Cir. June 27, 2005) (the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act do not change the rule that a petitioner may not collaterally attack his state court conviction in a 28 U.S.C. 2241 petition against the INS).
http://caselaw.lp.findlaw.com/data2/circs/9th/0355136p.pdf

Other

POST CON RELIEF " NUNC PRO TUNC ORDERS
The notion of court orders nunc pro tunc is a very vague equitable doctrine. Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal courts conclusion that the order or plea was entered on the backdated date c.f. United States v. Esparza, 678 F.3d 389, (5th Cir. Apr. 20, 2012) (record evidence is sufficient to justify the trial judge's conclusion that Esparza was an alien at the time of his reentry, and the nunc pro tunc divorce decree obtained in 2010 purporting to retroactively rearrange Esparza's custody status in 1994 does not raise a reasonable doubt as to his alienage). The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity. On the other hand, it is possible for immigration counsel to argue that the immigration courts are bound to honor the final judgment of a state court under the Full Faith and Credit doctrine. Because of this question, however, counsel should ask whether they really need an order to be entered nunc pro tunc. If there is no strong immigration need to backdate the order or plea, perhaps it is better not to ask that the state court act nunc pro tunc. If it is really necessary to backdate an order or plea, the best argument might be that the law requires that the state and immigration courts place the defendant back in the same position he or she would have occupied if the error had not been made, i.e., with the opportunity to enter the same plea he or she would have had if the ineffective assistance of counsel or the courts error in giving the mandatory immigration advice had not been made. The United States Supreme Court recently referred to this obligation in Lafler v. Cooper, 556 U.S. ___, 132 S. Ct.1376 (Mar. 21, 2012). In that case, the court addressed the question of prejudice where defense counsel rendered ineffective assistance of counsel during plea bargaining, where in rejecting an offer of a 51-to-85-month sentence, defense counsel misadvised the defendant that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist, and he went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence. The court addressed the general question of the appropriate remedy where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence: Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must neutralize the taint of a constitutional violation, id., at 365 . . . . (Id. at 1388.) This argument might also be used in the context of a California Penal Code 1016.5 error, where justice also requires the court to place the defendant in the same position he or she would have occupied absent the error. The federal courts of appeals, including the Ninth Circuit, have also held in the immigration ineffective assistance of counsel context, that the remedy must place the client in the same position he or she would have occupied, as far as the timing of relief is concerned, that they would have faced if counsel had not made the error. One case involved the one-year deadline for filing a political asylum claim, and held that even though the court finding of ineffective assistance of counsel was made many years later, when the deadline had long since passed, the court ordered the immigration authorities to accept the political asylum claim as though it had been timely filed within the one-year statute of limitations. The BIA has issued nunc pro tunc remedies in cases going back for more than 50 years ... [to] achieve equitable results serving the interests of the agency and the individual alike. In re Lei, 22 I. & N. Dec. 113, 132 (BIA 1998). Federal courts also rel[y] on the doctrine, in order to return aliens to the position in which they would have been, but for a significant error in their immigration proceedings. Edwards v. I.N.S., 393 F.3d 299, 308"09 (2d Cir.2004). When agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit such as the opportunity to seek a particular form of deportation relief, courts apply the doctrine in immigration cases so the error [can] be remedied nunc pro tunc. Id. at 310"311; see also Batanic v. I.N.S., 12 F.3d 662, 667 (7th Cir.1993) (granting a noncitizen asylum nunc pro tunc, when procedural defects in his removal proceeding coupled with an intervening statutory change made him otherwise ineligible for asylum); De Cardenas v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (remanding a case to the BIA with directions to enter relief from deportation nunc pro tunc, given administrative oversights and procedural defects [had] deprived [petitioner] of an important opportunity to make her case for section 212(c) relief).