Post-Conviction Relief for Immigrants

The immigration authorities can initiate removal proceedings, based upon a criminal conviction, only if the conviction is final.   A conviction is final, for immigration purposes, only if direct appeal has been exhausted or waived.  Thus, during the period within which a direct appeal can be initiated, the conviction is not final for immigration purposes.  In addition, during its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes. [51]  The Fifth and Seventh Circuits, however, have held in poorly reasoned decisions that IIRAIRA abolished this finality requirement.  See § 5.25, supra.

            A successful appeal can result in the complete vacating of the judgment of the trial court, and thus eliminate a conviction for immigration purposes, even if the conviction is for a narcotics offense.  An unsuccessful appeal can take a year or two to complete, and it is possible that during that period the defendant can complete probation, or obtain early termination of probation, and succeed in obtaining the state rehabilitative relief that will eliminate the adverse immigration consequences of a qualifying conviction.

            In some states, appeals from guilty pleas are greatly restricted.  They may not be possible at all without a certificate of probable cause to appeal issued by the trial judge.  In such circumstances, it is preferable to negotiate a “slow plea of guilty,” in which the defendant waives the right to a jury trial to confront witnesses, and agrees to a court trial based upon stipulated facts, the police reports, or the preliminary hearing transcript.  This has all the advantages of a guilty plea, since the procedure is very efficient and does not involve the judicial expenses associated with juries or witnesses, yet normally allows the defendant to enjoy full appellate rights.  S/he can raise questions regarding the sufficiency of the evidence or the adequacy of the advisals received during the course of the slow plea procedure, or the denial of motions to suppress evidence, and the like.  The effect, however, of the pendency of the direct appeal is to prevent the conviction from being considered final for immigration purposes.  Even an appeal from the sentence should be sufficient to preclude the conviction from being considered final, since a sentence is required to constitute a conviction for immigration purposes.  See § 5.25, supra.

[51] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); Matter of Jadusingh, No. A29 847 544 (BIA 1998) (guilty plea conviction on appeal not sufficiently final to permit underlying facts to be used to establish inadmissibility for reason to believe noncitizen had been a drug trafficker).  An INS regulation provides that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242(b) defining conviction for purposes of the mandate to expeditiously deport convicted aliens, INA § 242(i), 8 U.S.C. § 1252(i).  See also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.