Post-Conviction Relief for Immigrants

If a sentence is vacated or modified under a state rehabilitative statute, there is a risk that the immigration authorities might take the position that the order is ineffective to eliminate the original sentence, and thereby the immigration consequences.  It is safest, therefore, to avoid modifying a troublesome sentence on this basis, if a safer or more effective alternative can be found.

In Matter of Roldan,[164] the BIA relied on the new IIRAIRA statutory definition of conviction[165] to hold that a state court action to “expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” does not eliminate the conviction for immigration purposes.  This decision is limited to situations in which a state court clears a state conviction from the record pursuant to a “state rehabilitative statute,” rather than on a ground of legal invalidity.[166] 

In Lujan-Armendarez v. INS, the Ninth Circuit overturned Roldan in part on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act, and that state expungements therefore continue to eliminate all immigration consequences of convictions of first offense simple possession of controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.[167]

However, a panel of the Ninth Circuit upheld the remainder of the Roldan decision in Murillo-Espinoza.[168]  There, the court found that an order vacating the conviction and dismissing the charge under an Arizona state rehabilitative statute was not effective to remove its immigration effects, giving deference to the agency determination expressed in Roldan.

Thus, convictions and sentences that are vacated under state rehabilitative statutes will generally continue to exist to trigger adverse immigration consequences except to the extent that Lujan and its progeny dictate otherwise.

            It is thus preferable not to attempt to vacate a troublesome sentence under a state rehabilitation statute.  Direct attack, whether by writ of habeas corpus, coram nobis, or nonstatutory motion to vacate is by far the safer route. 

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

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

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

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

[168] Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).