Post-Conviction Relief for Immigrants

A conviction vacated for violation of a state or federal constitutional right, as would be the case on all vacaturs issued as a result of nonstatutory constitutional motions to vacate, ceases to exist for immigration purposes.  A state court order to this effect must be accorded full faith and credit because this type of motion is not based on a rehabilitative statute, and the violation of a constitutional right creates a ground of legal invalidity at the time the plea is entered.  In addition, an order vacating a conviction on this ground is often accompanied by a finding that the plea was rendered involuntary, in the constitutional sense, by the failure to issue the statutory deportation warning, which constitutes a Fifth Amendment due process violation.  The Board of Immigration Appeals, in Matter of Roldan, held that a conviction ceases to exist “where the . . . vacation of the conviction is warranted . . . on grounds relating to a violation of a fundamental . . . right . . . .”[264]

Pendency of Post-Conviction Relief.  The pendency of this request for post-conviction relief does not destroy the finality of the conviction.[265]

[264] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc).

[265] See § 5.40, supra.