Post-Conviction Relief for Immigrants

Chapter

§10.1 I. Introduction
§10.2 II. Documenting the Victory
§10.3 A. Obtaining Certified Copies of the Order Vacating the Conviction or Sentence
§10.4 B. Correcting FBI Criminal History Reports
§10.5 C. Correcting State Criminal History Records
§10.6 III. Procedural Rules Governing the New Prosecution
§10.7 A. The Client Cannot be Punished for Exercising the Right to Vacate the Conviction
§10.8 B. The Client Must Be Given Full Credit for All Time Served as a Result of the Original Conviction
§10.9 C. The Original Judge May be Disqualified at This Point, Even if a Challenge Has Previously Been Employed
§10.10 D. The Statute of Limitations May Prevent Filing of New Charges at This Point, Even if They Could Lawfully Have Been Filed at the Time of the Original Disposition
§10.11 IV. Obtaining a New Outcome that Minimizes Adverse Immigration Consequences
§10.12 A. Some Safer Alternative Dispositions
§10.13 B. Plea Negotiations
§10.14 C. Documenting the Disposition for Immigration Counsel
§10.15 V. Reopening Removal Proceedings
§10.16 A. Before Deportation Has Occurred
§10.17 1. Prior to Removal Order
§10.18 2. After the Immigration Judge Issues a Removal Order.
§10.19 3. During Appeal
§10.20 4. Motion to Reopen After BIA Dismissal of Appeal
§10.21 5. During Petition for Review Proceedings
§10.22 B. After Deportation Has Occurred
§10.23 1. The BIA Has Jurisdiction to Reopen Proceedings After Deportation if the Conviction Has Been Vacated
§10.24 2. Court of Appeals Jurisdiction to Order the Noncitizen to be Readmitted After Conviction Has Been Vacated
§10.25 3. Federal Habeas Corpus Seeking Readmission After the Conviction Has Been Vacated
§10.26 4. Collateral Attack of Deportation Order Upon Prosecution for Illegal Re-entry.

§ 10.19 3. During Appeal

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While appeal of the removal order to the BIA is pending, immigration counsel can submit the evidence to the BIA in support of a motion to remand the case to the immigration judge for consideration of this new evidence. It often takes the BIA a number of months to react to a motion to remand under these circumstances.