Generally, “a valid exclusion order based upon a final judgment is not disturbed by a post conviction attack on the judgment,” and “an exclusion order may not be attacked at a subsequent hearing unless there was a gross miscarriage of justice at the prior proceedings.” [40]  Additionally, a motion to reopen generally cannot be made by or on behalf of a person who is the subject of deportation proceedings subsequent to his or her departure from the United States.[41]

 

In some cases, however, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[42]

 

Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted,[43] including where the underlying conviction has been vacated.[44]  As the Ninth Circuit has stated: “[T]he nullification of a conviction upon which deportability is premised deprives deportation of a legal basis.”[45]  This is true even if the conviction is vacated well after the deportation order has been rendered final by the immigration courts, and even after the order has been executed and the noncitizen has been deported.  A noncitizen may therefore challenge the legality of a deportation order on the basis that the predicate conviction has later been vacated on the merits.

 

In the Ninth Circuit, the requirements, narrowly read, for continuing BIA jurisdiction after deportation has occurred are as follows:

 

1.  The moving party must have exhausted administrative remedies (appealed to BIA).[46]

 

2.  The moving party must have sought post-conviction relief prior to departure (i.e., s/he did not “sleep on his or her rights”).[47]

 

3.  The conviction upon which the deportation was based was vacated on the merits, rather than on purely equitable grounds.[48]  The conviction need only have been vacated on the merits, and need not have been vacated on constitutional grounds.[49]

 

4.  The moving party has not subsequently re-entered the United States illegally.

 

            Former INA § 106(c), which barred judicial review if the noncitizen had departed the United States and was in effect while these cases were decided, was removed from the INA by IIRAIRA § 306, and not replaced.  Therefore, departure from the United States no longer statutorily moots an appeal to the BIA.[50]

 

PRACTICE POINTER:  The new rules limiting motions to reopen must be consulted in this connection.[51]  It is possible to file such a motion within the 90-day time limit, but before the actual receipt of the order vacating the conviction, as long as the filing with the BIA can be supplemented with a copy of the order vacating the conviction before the BIA considers the matter.  It is certainly better to file the order vacating the conviction with the timely motion to reopen if at all possible, because the showing is complete prior to BIA consideration of the matter.  While the immigration authorities may question the effectiveness of this tactic, there may be no substantive prejudice to the immigration authorities.  Moreover, the BIA and DHS are free to reopen a removal proceeding after this deadline has passed in any event.

 

            These cases preceded the regulatory statutes of limitations on filing motions to reopen (only one motion to reopen, 30- and 90-day filing deadlines), but the fact that the underlying deportation was legally invalid (the fact that allows the departed noncitizen to file the motion), excuses noncompliance with these deadlines.  In Wiedersperg, more than 10 years had elapsed prior to filing of the motion to reopen.  In a more recent unpublished case, the defendant had filed his motion to reopen more than a year after the final order was issued.[52] 

 

If the illegality of the deportation does not excuse noncompliance with the new limitations on motions to reopen, the respondent would have to successfully petition the BIA for a sua sponte reopening, or obtain the consent of the DHS to file a joint motion to reopen before the BIA.  An ineffective assistance of counsel argument could be attempted to equitably toll the filing deadline on the theory that counsel was ineffective in failing to initiate the post-conviction work prior to the deportation.[53]  Where possible, the respondent should file the motion to reopen within 90 days of a final order by the BIA to avoid these issues.         

 

These decisions can also be used as authority, by an attorney before the BIA with a case from the Ninth Circuit, in favor of an argument for a continuance in removal proceedings to allow a noncitizen to pursue post-conviction relief.  The attorney can argue that it would save the BIA time and work (and government expense) to grant the continuance, rather than go through the extra steps of later reopening the proceedings once the post-conviction work has concluded.

[40] Hernandez-Almanza v. United States Dep't of Justice, 547 F.2d 100, 102-103 (9th Cir. 1976) (departed noncitizen who waived appeal to BIA may not reopen deportation proceedings after subsequent illegal re-entry, even if the underlying conviction causing deportability has been vacated to avoid deportation).

[41] 8 C.F.R. § 1003.23(b); Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003).

[42] See Weidersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[43] Mendez v. INS, 563 F.2d 956, 958-959 (9th Cir. 1977) (noncitizen lost jurisdiction to bring a motion to reopen before the BIA upon departure under an order of deportation only if such departure was “legally executed,” and BIA erroneously denied motion to reopen where noncitizen was deported without informing attorney of record); Juarez v. INS, 732 F.2d 58, 59-60 (6th Cir. 1984) (following Mendez); see Marrero v. INS, 990 F.2d 772 (3rd Cir. 1993) (adopting Mendez rule only where noncitizen has colorable due process claim); contra, Umanzor v. Lambert, 782 F.2d 1299, 1302-03 (5th Cir. 1986) (rejecting Mendez rule).

[44] Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (after noncitizen has departed United States, BIA still has jurisdiction to consider motion to reopen where the underlying order of deportation was invalid because underlying ground of deportation — a vacated conviction — could not serve as a legitimate ground for deportation); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) (same).

[45] Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir. 1990).

[46] Hernandez-Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976) (departed noncitizen who waived appeal to BIA may not reopen deportation proceedings after subsequent illegal re-entry, even if the underlying conviction causing deportability has been vacated to avoid deportation).

[47] Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

[48] Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981); see Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

[49] Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); compare Marrero v. INS, 990 F.2d 772 (3rd Cir. 1993) (adopting Mendez rule only where noncitizen has colorable due process claim).

[50] Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001); Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001).

[51] 8 C.F.R. § § 3.2(c)(2), 3.23(b)(4)(i).

[52] Hernandez-Guzman v. Ashcroft, 45 Fed.Appx. 672, 2002 WL 1968353 (9th Cir. 2002) (unpublished).

[53] “Where the ineffective performance . . . of an actual attorney . . . caus[ed] an essential action in her client’s case to be undertaken ineffectively, out of time, or not at all, equitable tolling is available.”  Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir. 2003).  Further, “equitable tolling does not require affirmative misconduct on behalf of the opposing party; rather, ‘[a]ll one need show is that by the exercise of reasonable diligence the proponent of tolling could not have discovered essential information bearing on the claim.’” Socop-Gonzalez v. INS, 272 F.3d 1176, 1184-1185 (9th Cir. 2000).  Finally, the Ninth Circuit has recently held that: “the only effective remedy for ineffective assistance of counsel . . . is to remand the case with instructions to apply the law as it existed at the time of [the defendant’s] hearing before the [immigration judge] . . .  Moreover, the prejudice requirement of an ineffective assistance of counsel claim could be insurmountable . . . if the petitioner were not entitled to avail himself of the law as it existed at the time he was subjected to the ineffective assistance.”  Castillo-Perez v. INS, 212 F.3d 518, 528 (9th Cir. 2000).

Seventh Circuit

POST-CON - EFFECTIVE VACATUR - AFTER CONVICTION VACATED
Padilla v. Gonzales, ___ F.3d ___, 2006 WL 3512479 (7th Cir. Dec. 7, 2006) (petition for review of removal order based on two crimes of moral turpitude, followed by state court orders vacating the two convictions, dismissed for failure to exhaust administrative remedies where petitioner did not ask BIA to reopen case in light of the vacated convictions, but instead petitioned the district court for habeas and then the court of appeals for review). http://caselaw.lp.findlaw.com/data2/circs/7th/052697p.pdf