Criminal Defense of Immigrants

(I)  Pendency of Post-Conviction Relief.  The pendency of post-conviction remedies, not constituting a direct appeal of right, from the original conviction, does not destroy the finality of the conviction.[191]  Moreover, the possibility that post-conviction relief will be granted in the future upon satisfactory completion of probation has been deemed not to impair the finality of the conviction.[192]  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[193]                  Direct appeal from denial of a collateral attack on a conviction, however, does not disturb the finality of the conviction for immigration purposes.[194]

On the other hand, once a conviction has been set aside on collateral attack, it ceases to exist for immigration purposes even if an appeal from the vacatur is pending, because there is no clear and convincing evidence the conviction still exists.  See § 11.6, infra.

                The DHS may argue that if the prosecution appeals a trial court order vacating the criminal judgment against the defendant, the immigration court can continue to treat the case as if the conviction were still in effect.  This argument should be rejected, at least in any context in which the government bears the burden of proof of the existence of a conviction.  The vacatur certainly throws the continued existence of the conviction into sufficient doubt that the government cannot establish its existence by clear and convincing evidence, as is required under these circumstances.  See § 7.39(B), infra.  Immigration counsel could argue that a trial-court conviction is treated as existing in criminal court, even though an appeal is pending, but of course that is not true in immigration court: a conviction on appeal is not treated as final in immigration court until the appeal has been completed.  Immigration counsel could try the judicial economy argument, that 95% of appeals in criminal cases are unsuccessful, so it is grossly unfair to deport the respondent before the appeal is over because 95% of the time it will have been a mistake, but the prosecution could break down that statistic into defense appeals (95% lost) and prosecution appeals (67% won).  The Ninth Circuit stated that Congress cannot be thought to intend that a noncitizen should be deported when a delay until probation has expired will bring an effective expungement.[195]  The BIA held that the IJ has discretion to continue a deportation hearing to allow the respondent to get an expungement where the expungement will solve the problem.[196]  These decisions could be used to argue that the IJ should at least continue the removal proceeding to see whether the deportable conviction still exists at the termination of the appeal.  This is a stronger argument if the prosecution’s ground for appeal is weak.

[191] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (Kentucky conviction was sufficiently final, at the time of defendant’s deportation, to qualify as aggravated felony conviction for purposes of enhancing sentence for illegal re-entry, since original conviction had become final; direct appeal from two judgments denying relief in a collateral attack on judgment of conviction was not a direct appeal from judgment of conviction); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Matter of Leon-Ruiz, 21 I. & N. Dec. 154 (BIA Jan. 3, 1996) (availability of post-conviction collateral attack does not affect the finality of the conviction for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992); Rivas v. INS, No. 02 Civ. 677(DLC) (S.D.N.Y. Jan. 27, 2003) (unpublished) (“A conviction is final and may be relied upon in removal proceedings when review of the conviction on direct appeal has concluded. Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991). A conviction subject to collateral attack is still final for the purpose of immigration review. Agero v. McElroy, 901 F.Supp. 146, 146 (S.D.N.Y.1995).”); Johnson v. INS, No. 3:03CV96(JBA) (D.Conn. Jan. 21, 2003) (unpublished) (“Moreover, Johnson’s conviction qualifies as a conviction even under the pre-§ 1101(a)(48) “finality” test of Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991) and Marino v. INS, 537 F.2d 686, 691-692 (2d Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28 U.S.C. § 2254.”); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975). 

[192] Matter of RR, 7 I. & N. Dec. 478 (BIA 1957).

[193] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][c][ii] (2007), citing Matter of G, 9 I. & N. Dec. 159 (AG 1961), in effect modifying Matter of V, 7 I. & N. Dec. 242 (BIA 1956).  See Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980) (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of the conviction).

[194] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (direct appeal from two judgments denying relief in collateral attack on judgment of conviction was not a direct appeal from judgment of conviction).

[195] Lujan-Armendariz v. INS, 222 F.3d 728, 746 n. 28 (9th Cir. 2000).

[196] Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980).