Criminal Defense of Immigrants


§ 7.38 VI. Post-Conviction Relief from Conviction

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Certain forms of post-conviction relief in criminal court have the potential to eliminate a conviction for immigration purposes.  Other forms of post-conviction relief have been held ineffective to do so.  For example, state rehabilitative relief is generally ineffective to eliminate adverse immigration consequences of a conviction, see § 11.18, infra, whereas vacating a conviction on a ground of legal invalidity is generally effective to do so.  See § 11.3, infra.  See generally Chapter 12, infra.  Some forms of post-conviction relief are effective to eliminate a conviction for certain conviction-based grounds of deportation, but not others.  For example, a judicial recommendation against deportation properly granted prior to November, 29, 1990, will eliminate a conviction of an aggravated felony or crime of moral turpitude for deportation purposes, but not a controlled substances or firearms conviction.  See § 11.21, infra.  It is therefore important to check the precise immigration effects of the particular form of post-conviction relief as to the specific conviction-based ground of deportation with which the noncitizen is threatened.[197] 


[197] A discussion of these issues can be found in N. Tooby, Post-Conviction Relief for Immigrants, Chapters 4 and 5 (2004); see Norton Tooby, Recent Developments Concerning Effective Orders Vacating Convictions, 11 Bender’s Imm. Bull. 534 (June 1, 2006).



In general, a criminal conviction may not be considered by the immigration authorities until it is final. Pino v. Landon, 349 U.S. 901 (1955). Although a conviction subject to collateral attack or other modification is final, the United States Courts of Appeals have generally agreed that a conviction is not final until direct appellate review has been either exhausted or waived. White v. INS, 17 F.3d 475 (1st Cir. 1994); Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981); Marino v. INS, 537 F.2d 686 (2d Cir. 1976). In Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994), the BIA recognized the distinction between direct appeals as of right and discretionary appeals to the next higher court in a tiered state court system, also commonly referred to procedurally as "direct appeals." Id. at 896. The BIA held that an alien who has exhausted his right to a direct appeal of his criminal conviction is subject to deportation for that conviction, and that the potential for further discretionary review on direct appeal, such as a discretionary request to file a nunc pro tunc appeal, will not affect the finality of the conviction for the purpose of immigration proceedings. Id. See also Morales-Alvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981). In three circuits, however, decisions have cast doubt on whether the 1996 statutory definition of conviction abolished this finality requirement by failing to mention it. Puello v. BCIS, 511 F.3d 324, ___, (2d Cir. Dec. 20, 2007) ("IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute. See Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir. 2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Moosa, 171 F.3d at 1009.") (dictum). This flies in the face of the rule that Congress is presumed to support existing law when legislating in the area unless it expressly overrules it.

Third Circuit

Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun. 9, 2008) ("pendency of post-conviction motions or other forms of collateral attack . . . does not vitiate finality [of a conviction for removal purposes], unless and until the convictions are overturned as a result of the collateral motions."), citing United States v. Garcia-Echaverria, 374 F.3d 440, 445-46 (6th Cir. 2004); Grageda v. INS, 12 F .3d 919, 921 (9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982); Will v. INS, 447 F.2d 529, 533 (7th Cir. 1971).

Tenth Circuit

Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir.2008) (adopting the reasoning of sister circuits and holding that the pendency of collateral proceedings does not vitiate finality).