Criminal Defense of Immigrants


§ 11.66 e. There is Still Time To Reopen the Immigration Case if Criminal Convictions Are Eliminated

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                Post-conviction relief may mean little to a client if it comes too late to avert the adverse immigration consequences.  Thus, it is important that there is sufficient time remaining in immigration proceedings for immigration counsel to be able to take the criminal-court order vacating the conviction and turn it to use in immigration court, before the client is deported or the 90-day limit on filing a motion to reopen proceedings, after a final removal order, has passed.  See § § 11.81-11.84, infra.


                In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[330]  Where the legal basis of a finding of deportability has been nullified, a new deportation hearing may be warranted.[331]  A deportation proceeding may also be reopened — even after a criminal conviction has initially become final — if a criminal court accepts a late appeal of the criminal conviction and the conviction becomes non-final.[332] 

[330] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[331] Bridges v. Wixon, 326 U.S. 135, 156 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).

[332] See Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).