(A)  No Collateral Attack on Validity of Conviction in Immigration Proceedings.  In general, a noncitizen is precluded from challenging the validity of a criminal conviction in immigration proceedings.  Immigration courts are normally required to accept as valid any criminal conviction that is proven to exist by sufficient evidence, and may not entertain any objections to the legal validity of a conviction during removal proceedings.[162]  In general, as an administrative agency, the DHS (or EOIR) has no power to adjudicate the validity of convictions underlying deportation proceedings.[163]  The proper forum in which to challenge the legal validity of a conviction is normally the criminal court and not a proceeding before the Executive Office for Immigration Review.[164]

 

[162]  Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir. 1993); Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985); Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977).

[163] Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).  Cf. Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) (plea procedurally defective and conviction set aside); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) (evidence of vacation of judgment available had counsel been given proper notice).

[164] Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985); Ramirez-Juarez v. INS, 633 F.2d 174 (9th Cir. 1980); Wing v. United States, 46 F.2d 755 (7th Cir. 1931); De La Cruz v. INS, 951 F.2d 226 (9th Cir. 1991) (INS has no power to adjudicate validity of state convictions where noncitizen alleges ineffective assistance of counsel in failing to inform of deportation consequences of guilty plea); D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes, § 4:1, n.1 (2007).

Fifth Circuit

CONVICTION - EXISTENCE - LEGAL INVALIDITY - IMMIGRATION COURTS MAY NOT ENTERTAIN A CLAIM THAT A CONVICTION, WHICH HAS NOT BEEN OVERTURNED IN CRIMINAL COURT, IS LEGALLY INVALID
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (noncitizen may not collaterally attack the legal validity of a criminal conviction, which has not been overturned in criminal court, in immigration proceedings), following Brown v. U.S. INS, 856 F.2d 728, 731 (5th Cir.1988); see also Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981) ("Once the [state criminal] conviction becomes final, it provides a valid basis for deportation unless it is overturned in a judicial post-conviction proceeding.").