Post-Conviction Relief for Immigrants

A writ of habeas corpus may be sought in state court collaterally to attack an order or judgment.  Among other things, it may be used to vacate a judgment of conviction, to obtain a remand for a new trial when the right to counsel has been denied, or to correct a sentencing error.[290]  The Anti-Terrorism Act [291] does not affect or restrict state habeas corpus or other forms of state post-conviction relief.

All states have a procedure by which a defendant may seek to vacate a conviction in the trial court after judgment has been imposed.[292]  Some states provide this procedure by statute; others have a common-law extraordinary writ procedure.  All states have a modern post-conviction procedure as the main post-conviction remedy, authorized by case law, statutory enactment, or promulgation of a court rule.[293]  Most states also provide at least one additional, alternative post-conviction remedy that supplements the principal post-conviction remedy and often authorizes relief in situations where relief is otherwise unavailable or impractical, for example, because a statute of limitations precludes relief.[294]

The state vehicles for providing post-conviction relief differ from state to state. Often these post-conviction acts also require a constitutional defect in the original proceedings or some other type of fundamental error.

New York.  A New York conviction that has been vacated by a post-conviction order pursuant to Article 440 of the New York Criminal Procedure Law governing Post Judgment Motions no longer constitutes a conviction for immigration purposes.[295]  The BIA held that because the post-conviction vehicle was not an expungement statute or a state rehabilitative statute, it must grant full faith and credit to the state court order vacating the conviction.[296]

[290] E.g., California Penal Code § § 1473‑1508; see, e.g., In re Hochberg, 2 Cal.2d 870, 879, 87 Cal.Rptr. 681 (1970) (new trial); In re Culberth, 17 Cal.3d 330, 335, 130 Cal.Rptr. 719 (1976) (sentencing error).  See also California Rules of Court 260, concerning habeas corpus procedure in superior courts.

[291] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

[292] See Donald E. Wilkes, State Post-conviction Remedies and Relief (2003 Edition) (Appendix A offers a state-by-state description of available post-conviction remedies).

[293] Ibid. at § 3.2 (2003 Edition).

[294] Id.

[295] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000). 

[296] Id. at 3.