In Wiedersperg v. INS,[54] the Ninth Circuit specifically addressed the availability of post-conviction relief to eliminate a previously final conviction for immigration purposes.  In 1968, Wiedersperg was convicted in California state court, and his conviction became final.  In 1969, the INS issued an OSC why he should not be deported on the basis of the state conviction.  In 1973, long after direct appeal had been waived or exhausted, Wiedersperg filed a petition in state court for post-conviction relief on grounds his plea was involuntary.  In 1974, the INS deported him during the writ proceeding, and in 1975, the state court granted the writ and vacated the conviction.[55]  In 1981, the criminal charges were dismissed.[56] 

 

In 1982, Wiedersperg petitioned the BIA to reopen his case on the ground that his deportation had been based on an invalid conviction, the BIA denied the motion, and he appealed the denial to the Court of Appeals.  The Ninth Circuit cited Mendez v. INS,[57] in which it had held that “the government’s deportation, without notice to counsel, of an alien whose criminal conviction had been vacated, stripped the deportation proceeding of its legality.”[58]  Even though much time had lapsed, the Ninth Circuit recognized that the deportation order was not valid once the predicate conviction had been vacated.  Thus, regardless of the passage of time and the fact that the noncitizen had already been deported, the deportation was illegal and could not stand.

 

Similarly, in Estrada-Rosales, the conviction was set aside after the noncitizen’s deportation.  Even though this new circumstance occurred well after the noncitizen had actually been deported, the Ninth Circuit recognized that the deportation was illegal and invalid, stating that the conviction therefore “cannot now serve as a legitimate ground for deportation.”[59]  In DeFaria v. INS,[60] the court upheld the reopening of a final order of deportation upon the request of the INS, but over the objection of the noncitizen, where one of the predicate convictions had been vacated after the case had concluded.  The court noted that this occurrence was not only “new,” but “material” to the validity of the deportation order, which was dependent on the original conviction.  Because one of the predicate convictions had been vacated, the deportation order was no longer valid and the INS had the right to re-open the case to substitute a different conviction to sustain the charge of deportability.

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

[55] Id. at 1180.

[56] Id. at 1181.

[57] Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977).

[58] Wiedersperg, supra, at 1181.

[59] Estrada-Rosales, 645 F.2d at 821; see also Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (ordering alien re-admitted to United States after he was deported without notice and without the opportunity to contact counsel and where the conviction had been vacated); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971) (reconsidering denial of petition for review and remanding to agency where conviction was vacated); United States v. Smith, 41 F.2d 707 (7th Cir. 1930) (holding that a conviction that was void under state law and could not be corrected  could not give rise to deportation).   

[60] DeFaria v. INS, 13 F.3d 422, 423 (1st Cir. 1993).

Ninth Circuit

MOTION TO REOPEN/RECONSIDER - AFTER DEPORTATION
Cardoso-Tlaseca v. Gonzales, __ F.3d __, 2006 WL 2390298 (9th Cir. Aug. 21, 2006) (8 C.F.R. 1003.2(d) barring granting of motion to reconsider to noncitizen following physical deportation does not apply when criminal conviction that formed a "key part" of the order of removal has been vacated on a basis of legal invalidity), reaffirming validity of Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen).