Post-Conviction Relief for Immigrants



 
 

§ 10.16 A. Before Deportation Has Occurred

 
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This task is far easier before deportation has occurred.  If the noncitizen vacated the conviction prior to being placed in removal proceedings, in an effort to avoid future immigration problems, or in order to ensure a future application for naturalization or adjustment of status goes smoothly, s/he should keep the certified copies of the order vacating the conviction on file until needed.  The balance of this discussion will cover situations in which the noncitizen has already been served with a Notice to Appear in Immigration Court for removal proceedings.

Updates

 

First Circuit

POST CON RELIEF - EFFECTIVE ORDER - VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).

Sixth Circuit

DEPORTATION - UNLAWFUL
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (court rejected argument that conviction for unlawful reentry must be vacated because noncitizen was removed in violation of due process, as he was removed at a time when court proceedings pertaining to his removal were pending; even though order staying his removal had been issued by district court on habeas, there was no evidence that INS had actual or constructive notice of this at the time it removed the noncitizen and INS was not bound by an order of which it had no actual or constructive notice).

 

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