Post-Conviction Relief for Immigrants

The client can suffer immigration penalties for some acts even if there is no criminal conviction.[20]  A person may be found inadmissible if an immigration officer has “reason to believe” the person has been a drug trafficker, or if s/he “has engaged in” prostitution.  Drug addiction and drug abuse conduct are also grounds of deportation and inadmissibility.  Even vacating a related conviction will not necessarily resolve these problems if the government has independent evidence of these “facts” since they do not depend upon the existence of a formal conviction before triggering deportability or inadmissibility.

            Further, a person who admits all the elements of a drug offense or crime involving moral turpitude is excludable, even though the person receives no actual criminal conviction in criminal court.[21]  However, if the incident is disposed of by the court in some immigration-harmless manner (e.g., vacating of the plea and substitution of an immigration-harmless new conviction, or dismissal), it is possible that the INS will not go behind the dismissal at all to hold the underlying conduct against the noncitizen. 

            Vacating one of two moral turpitude convictions will not make the noncitizen eligible for the petty offense exception to the moral turpitude exclusion ground; to be eligible for this exception, the person must have committed only one such offense. [22]  Both convictions must be vacated to avoid a CMT ground of inadmissibility.

            PRACTICE POINTER:  In dealing with the immigration authorities and in pursuing post‑conviction remedies, do not allow the client to make an admission or provide other new evidence of any offense involving drugs or prostitution.  For example, the defendant may make a declaration to establish equities, describing the facts of her previous life and how she has changed for the better.  In doing so, it is important for the defendant to avoid any admission of sale, addiction or abuse of drugs, or of having engaged in prostitution.

A noncitizen may still be found inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) or deportable under 8 U.S.C. § 1227(a)(2)(C), even where no conviction is entered or after a conviction has been vacated, where a consular or immigration officer has reason to believe that s/he has been involved in drug trafficking or has admitted the commission of a controlled substance offense.[23] 

[20] See N. Tooby, Criminal Defense of Immigrants, Chap. 2 (2003); ILRC, Chapter 3 and § 6.2; Annot., Effect of Expungement of Conviction on § 241(a)(4)(II) of Immigration and Nationalization Act of 1952, Making Aliens Deportable for Crimes Involving Moral Turpitude or Drugs, 98 A.L.R. Fed. 750 (1990). For a listing of conduct-based grounds of inadmissibility and removal, see N. Tooby, Criminal Defense of Immigrants, Appendix E (grounds of deportation) & Appendix G (grounds of inadmissibility) (2003).

[21] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).

[22] See K. Brady, California Criminal Law and Immigration, § 4.2 (2000).

[23] See Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (expungement under the Federal Youth Corrections Act only bars the use of the conviction to deny the admission, not the use of the underlying facts); Nunez-Payan v. INS, 815 F.2d 384 (5th Cir. 1987); Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979).