Post-Conviction Relief for Immigrants

The safest course — as is the case with vacating the conviction itself — is to obtain a court order in the criminal case vacating or setting aside the sentence as legally invalid on some ground that is not related to immigration considerations.[192]

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, and imposing a new non-deportable custody order.  This is likely to be effective, because the BIA cannot “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.[193]  The BIA rejected the 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.  Instead, it 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.  While this conclusion has been cast into some doubt with respect to convictions,[194] it remains valid for orders vacating sentences.

            Finally, vacating a sentence on any ground at all will be effective under current law to eliminate the immigration consequences of the original sentence.  See § 7.67, infra.

[192] See N. Tooby, Effective Post-Conviction Relief: Eliminating Criminal Convictions for Immigration Purposes, in II AILA Handbook on Immigration and Nationality Law — Advanced Practice (2001-2002).

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

[194] See Chapter 4, supra.