Post-Conviction Relief for Immigrants

(B)  Collateral Immigration Effects Preclude Mootness.  Even after release from physical and constructive custody when parole or probation have terminated, the immigration effects of the conviction remain sufficient collateral consequences to prevent the habeas corpus petition from being moot. [154]

            Where the deportation, which flowed from the criminal conviction, and the conviction itself, trigger continuing inadmissibility, precluding the noncitizen from re-entering the United States, the conviction has the continuing collateral effect of preventing the noncitizen from being about to travel and re-enter the country to obtain immigrant status.[155]  This is sufficient to preclude mootness.

            The Second Circuit has explained:

Historically, the narrowest approach to collateral consequences recognized only “concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses).”  Id. at 8.  Under the INA’s admissibility provisions, Mr. Tapia-Garcia’s removal and status as an aggravated felon render him permanently inadmissible unless the Attorney General consents to his reapplying for admission, 8 U.S.C. § 1182(a)(9)(A)(ii)-(iii), which is unlikely. His inability to reenter and reside legally in the United States with his family is a collateral consequence of his deportation because it is clearly a concrete disadvantage imposed as a matter of law. See Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (holding inadmissibility is a penalty imposed as a matter of law).

Because he is inadmissible, Mr. Tapia-Garcia is therefore threatened with an actual injury traceable to the INS. Furthermore, a favorable judicial decision would undoubtedly redress the injury: Mr. Tapia-Garcia’s status as a legal permanent resident would be restored and he could return to the United States. See Gao v. Jenifer, 185 F.3d 548, 557 (6th Cir. 1999) (holding case not moot because requested relief would allow alien to apply for adjustment of status to that of a legal permanent resident). We therefore hold that this appeal is not moot.[156]

Therefore, the post-conviction petition is not moot, since the noncitizen continues to suffer the ongoing effects of inadmissibility.

            Counsel will want to consider whether to raise or emphasize the immigration consequences as collateral consequences to prevent a mootness claim, since the immigration courts are concerned about the effectiveness to eliminate immigration consequences of vacaturs granted to avoid immigration consequences.  See Chapter 4, supra.  A conviction typically has many other collateral consequences sufficient to preclude mootness.  See § 5.38(c), infra.

[154] See, e.g., United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (finding the possibility of deportation to be a serious collateral consequence of a conviction); Chong v. District Director, INS, 264 F.3d 378 (3d Cir. 2001) (“[T]he Board’s order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her from entering the United States for ten years.”) ; United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) (habeas action was not mooted by deportation due to possibility of future arrest and imprisonment upon illegal re-entry after deportation); Cuevas-Diaz v. Ashcroft, 37 Fed.Appx. 935 (9th Cir.  2002) (unpublished) (possibility of illegal re-entry prosecution precluded mootness).

[155] Chong v. District Director, INS, 264 F.3d 378 (3d Cir. 2001) (“[T]he Board’s order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her from entering the United States for ten years.”)

[156] Tapia-Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir. 2001).