Criminal Defense of Immigrants


§ 7.2 (H)

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(H)  Convictions That Have Been Erased by Effective Post-Conviction Relief.  The federal immigration rules on what post-conviction relief is effective, in immigration court, in eliminating a conviction are also non-intuitive and not necessarily the same as the state law rules in this respect. 


                (1)  Judicial Recommendations Against Deportation that were granted by the criminal sentencing court before JRADs were abolished on November 29, 1990, remain effective today.  See § 7.41, infra. 


                (2)  Executive pardons eliminate some of the most important immigration consequences.  See § 7.42, infra. 


                (3)  State rehabilitative relief is effective, in the Ninth Circuit only (so far), to eliminate the immigration consequences of first-offense simple possession convictions, and a few other minor first-offense drug convictions that are smaller than simple possession convictions and that are not forbidden under federal drug laws, such as possession of paraphernalia, being in a place where drugs are being used, driving or being under the influence of a controlled substance, and the like.  Otherwise, state rehabilitative relief is completely ineffective to erase immigration consequences of criminal convictions.  See § 7.43, infra. 


                (4)  Convictions that have been vacated by the court of conviction, on the ground that they were legally invalid from the very beginning, are effectively eliminated for immigration purposes.  The government has the burden of proof in immigration court to show deportability and will not be able to do so if the record is ambiguous concerning whether the conviction was vacated on a ground of invalidity or merely to avoid immigration consequences or reward rehabilitation.  See § 7.44, infra. 


                (5)  Sentences that are reduced or vacated are ignored.  The most recent sentence governs for immigration purposes, even if the change was not made on a ground of legal invalidity.  See § 7.45, infra.  Felonies can effectively be reduced to misdemeanors, and misdemeanors to infractions on discretionary grounds.  See § § 7.46-7.47, infra.



Sixth Circuit

Al-Najar v. Mukasey, __ F.3d __, 2008 WL 245632 (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court constituted an impermissible collateral attack).