The granting of a motion to withdraw a guilty plea made before sentence interrupts the criminal proceeding prior to the moment a conviction has come into existence for immigration purposes.  There is no conviction to be eliminated, since the elements of a conviction under the statute have not been satisfied.  The statute defining “conviction” has two requirements:

 

(i)        the defendant must have entered a plea of guilty or nolo contendere or admitted sufficient facts to warrant a finding of guilt, and

(ii)       the judge must have ordered some form of punishment, penalty, or restraint on the liberty to be imposed.[219] 

Since the plea has been withdrawn, prior to the imposition of sentence, the second statutory requirement (the sentence) necessary to constitute a conviction under the immigration definition has never come into existence, and no conviction ever existed for immigration purposes.

 

            Withdrawal of a guilty plea will serve to prevent any conviction from coming into existence generally and as a ground of deportation, exclusion, or ineligibility to show good moral character.[220]  It is nonetheless important if possible to make sure the plea is withdrawn on grounds of legal invalidity, rather than merely as a compassionate action, in order to prevent the immigration authorities from (improperly) arguing that the grant of the motion does not successfully avoid the immigration consequences.  See Chapter 4, supra.[221]

 

[219] INA § 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

[220] The sole issue is whether the trial court had jurisdiction under state law to vacate the conviction.  See, e.g., discussions in Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[221] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

Second Circuit

POST CON RELIEF - EFFECTIVE ORDER - COURT'S ORDER GRANTING MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR IMMIGRATION PURPOSES
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for mmigration purposes; an interpretation of the statutory definition [of conviction to the ontrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a "conviction" for immigration purposes, because the "conviction" would be established on the date of the entry of the plea. We reject this reading because "[a] statute should be interpreted in a way that avoids absurd results."), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000).