Criminal Defense of Immigrants
§ 11.81 C. Reopening Removal Proceedings
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Once the post-conviction relief has been obtained, a new immigration-safe disposition has been achieved, and certified copies are available to document the new criminal history, it is necessary for immigration counsel to use this proof before the immigration authorities, immigration courts, or federal courts to avoid the adverse immigration consequences that were threatened by the original conviction.
POST CON RELIEF " IMMIGRATION EFFECT " COURT OF APPEAL CANNOT CONSIDER STATE COURT ORDER ALTERING SENTENCE THAT WAS NOT PART OF THE ADMINISTRATIVE RECORD ON APPEAL
Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. Oct. 13, 2011)(Escoto"Castillo's contention that his 2002 burglary conviction was not an aggravated felony is based entirely on a post-removal state court order, evidence that is not part of the administrative record on appeal. Congress has unambiguously provided that we may decide a petition for review only on the administrative record on which the order of removal is based.); citing INA 242(b)(4)(A); 8 U.S.C. 1252(b)(4)(A); Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002) (court refused to consider whether a post-removal state court sentence restructuring eliminated the aggravated-felony consequences of the conviction, because the order was not part of the administrative record on which the removal order was based).
POST CON RELIEF " VACATUR " MOTION TO REOPEN " BIA FREQUENTLY GRANTS MOTION TO REOPEN SUA SPONTE AFTER VACATUR REMOVES BASIS FOR REMOVAL
Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte under 8 C.F.R. 1003.2(a); cf. In re Rodriguez"Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (concluding that a conviction vacated on the merits cannot form the basis for an alien's removal). The Board regularly grants such requests when the alien's underlying conviction has been vacated due to a substantive or procedural defect in the original criminal proceedings, concluding that such a change in the facts constitutes exceptional circumstances justifying further review of the alien's case.) (footnote omitted).
REMOVAL - RETURN OF THE WRONGFULLY REMOVED
One possible way to obtain return of noncitizen wrongfully removed would be to negotiate a "deal" under which the U.S. Government flies the client back to the USA, admits the client to USA, and allows the client to adjust status in exchange for client waiving suit and fees against the United States. Thanks to Beryl B. Farris, Atlanta.