Post-Conviction Relief for Immigrants

The long-standing rule with respect to criminal convictions is that an order vacating the conviction as legally invalid operates to eliminate the conviction’s immigration effects.[151]  The Ninth Circuit has repeatedly held that post-conviction relief vacating criminal convictions eliminates them for immigration purposes.[152]

            This principle has not been altered by the IIRAIRA new definition of conviction.[153]  The Ninth Circuit reaffirmed this principle, in dictum, on the basis of an INS concession that Congress did not intend to reverse the practice that a conviction as legally invalid could not serve as a basis for deportation.[154]  The court noted that:

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant’s guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[155]

The rule with respect to vacating criminal convictions is that the order must specify a ground of legal invalidity and may not be granted solely for humanitarian reasons.  The INS has asserted, and the courts have agreed, that an order vacating a conviction not for legal invalidity, but on humanitarian grounds, is ineffective to eliminate the conviction and therefore ineffective to eliminate the adverse immigration consequences.[156] 

Therefore, when attempting to vacate the conviction itself, it is necessary for counsel, in the words of the court in Beltran, to “identify [a] new defense or legal defect[] in the criminal proceedings” (thus providing a ground on which to distinguish Beltran).  The petitioner will not “request[] that the conviction be set aside solely in order to prevent deportation . . . .”  And the normal habeas corpus petition, coram nobis petition, or motion to vacate will therefore be effective to “remove the legal basis of [the] conviction for purposes of application of federal [immigration] law.”[157]

Therefore, the safest course — as is the case with vacating the conviction itself — is to obtain a court order vacating or setting aside the sentence as legally invalid on some specified ground.  This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, and even a petition for a writ of audita querela — as long as the order recites that the sentence is vacated because it is legally invalid.

The next-safest course of action is to word the order as “vacating and setting aside” the previous custody order (without mentioning the grounds), even if the order is granted as a matter of discretion.  The court must then impose a new non-deportable sentence.  This is very likely to be effective, because the BIA may not “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.[158]

[151] “Such an order or writ [vacating a criminal conviction] may prevent an attempted deportation grounded upon the vacated conviction.”  Matter of Sirhan, 13 I. & N. Dec. 592, 597 (BIA 1970).

[152] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled alien to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport alien whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of alien based on invalid conviction could not be considered “lawfully executed”); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).

[153] Congress recently redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.”  Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA), § 322, amending Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[154] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000) (footnote 30 omitted).

[155] Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).

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

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

[158] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).  The BIA rejected the Service’s argument that a conviction vacated for purposes of avoiding removal, rather than based on a ground of legal invalidity, remains a conviction under the INA, and held that a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute.  In an unpublished decision, the BIA held that a state court order modifying a one-year sentence nunc pro tunc to reflect a sentence of 220 days’ confinement was effective to eliminate the previously-imposed one-year sentence as a basis to find a conviction to be an aggravated felony.  Matter of Barragan, A14-262-818 (BIA June 16, 1999), citing Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (deportation proceedings terminated because noncitizen’s sentence had been modified to less than one year).