Post-Conviction Relief for Immigrants



 
 

§ 5.40 6. Immigration Consequences

 
Skip to § 5.

For more text, click "Next Page>"

An order vacating a conviction pursuant to 28 U.S.C. § § 2254, 2255 is effective to eliminate the adverse immigration consequences of the conviction, since these forms of relief are granted only when the petitioner has been prejudiced by a fundamental legal or constitutional error.[164]

 

Pendency of Post-Conviction Relief.  The pendency of a request for post-conviction relief, other than a direct appeal of right, does not destroy the finality of the conviction.[165]  Moreover, the possibility that post-conviction relief will be granted in the future upon satisfactory completion of probation has been deemed not to impair the finality of the conviction.[166]  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[167]


[164] The effect will be the same as relief granted under a motion pursuant to the former provisions of Fed. R. Crim. P. 32(d) or in the form of a writ of error coram nobis.  United States ex rel. Freislinger on Behalf of Kappel  v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F. 2d 34 (3rd Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[165] Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975).

[166] Matter of RR, 7 I. & N. Dec. 478 (BIA 1957).

[167] Gordon § 71.05[1][c][ii], citing Matter of G, 9 I. & N. Dec. 159 (AG 1961), in effect modifying Matter of V, 7 I. & N. Dec. 242 (BIA 1956).  See Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980) (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of the conviction).

Updates

 

Sixth Circuit

POST-CONVICTION RELIEF " FEDERAL " HABEAS CORPUS " STANDING " IMMIGRATION CONSEQUENCES AS LASTING COLLATERAL CONSEQUENCES SUFFICIENT FOR STANDING
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (petitioner has standing to pursue a motion under 28 USC 2255, because he continues to suffer from an injury in fact because we may presume collateral consequences, he was removed from the United States, and he is now inadmissible to reenter the United States).

 

TRANSLATE