Criminal Defense of Immigrants


§ 11.37 d. Timing of Post-Conviction Relief

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Counsel must choose a vehicle that can vacate the conviction quickly enough to avert deportation, since the mere filing of a petition for post-conviction relief does not affect the finality of the conviction for immigration purposes or delay the time at which the government may initiate removal proceedings.[294]   For example, immigration counsel may be unable to force the immigration courts to take the post-conviction order vacating a conviction into account if it was not presented to the immigration courts prior to the finding of deportability based on that conviction.[295]  Where a noncitizen has been deported before the post-conviction order can be obtained, it is far more difficult to reopen the removal proceedings to present the new evidence.


                Immigration and criminal counsel must cooperate concerning the timing of the case.  In some cases, after the original conviction has been vacated, it is possible to achieve considerable benefits for the client — even if the client is later convicted of the original offense a second time — if the reconviction is avoided until enough time has elapsed to enable the client to apply for some type of immigration relief or avoid an adverse immigration deadline.


                If the DHS has filed removal proceedings against the client, very often the client can terminate proceedings by providing satisfactory evidence that the conviction is not final since a direct appeal is pending.  Thereafter, the client may not come again to the attention of the immigration authorities unless s/he is again jailed, and removal proceedings may never be renewed, or may be renewed only after the client has been able to qualify for some sort of immigration relief.  The federal government is beginning to devote much more funding and attention to the task of identifying and removing noncitizens with criminal convictions, so this situation may change.


                In other cases, the client may face immigration deadlines of which criminal defense counsel should be aware.  It may be possible to obtain more time from the immigration court in which to investigate, research the case, and apply to the criminal courts for post‑conviction relief.[296]   Likewise, it may be essential to obtain enough time in the criminal courts before the client receives a final judgment of conviction in order to permit the client to obtain immigration relief based on having held a certain immigration status for a certain length of time.


                Moreover, if considerable time has passed since the original offense was committed, it may be more difficult for the prosecution to prove its case if the criminal conviction can be reopened.


                In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed after the conviction has been vacated.

[294] See, e.g., Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).

[295] See, e.g., Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A) (refusing to consider a resentencing order that had not been presented in the immigration proceedings, and was thus not a part of the administrative record).

[296] Immigration courts have discretion to delay deportation proceedings until the client has had an opportunity to complete probation and apply for expungement or conclude a post-conviction attack.  Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980).




There is no statute of limitations requiring the federal immigration authorities to begin deportation proceedings within a certain time after a deportable conviction occurs. It is true that federal statute provides that "the Attorney General shall begin any removal proceedings [in the case of an alien who is convicted of an offense which makes the alien deportable] as expeditiously as possible after the date of the conviction." (INA 239(d)(1), 8 U.S.C. 1229(d)(1).) The following subsection, however, makes clear Congress' intent not to "create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person." (INA 239(d)(2), 8 U.S.C. 1229(d)(2).)

The DHS is thus free to initiate deportation proceedings against a noncitizen 5, 10, 25 years, or more after the deportable conviction has occurred. E.g., Atkinson v. Attorney General of U.S., 479 F.3d 222 (3d Cir. 2007) (deportation proceedings begun in June, 1997, on the basis of a Dec. 1991, conviction of conspiracy to distribute a controlled substance: six-year delay); Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (removal proceedings first begun in 1997 on the basis of a 1989 conviction: eight-year delay); Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2006), affd, Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007) (deportation proceedings begun in February, 2003, on the basis of a 1995 conviction of unauthorized use of a motor vehicle: eight-year delay). There is no legal protection whatsoever against government delay in the initiation of removal proceedings. (INA 239(d)(2), 8 U.S.C. 1229(d)(2).)