Post-Conviction Relief for Immigrants

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).