This task is far easier before deportation has occurred.  If the noncitizen vacated the conviction prior to being placed in removal proceedings, in an effort to avoid future immigration problems, or in order to ensure a future application for naturalization or adjustment of status goes smoothly, s/he should keep the certified copies of the order vacating the conviction on file until needed.  The balance of this discussion will cover situations in which the noncitizen has already been served with a Notice to Appear in Immigration Court for removal proceedings.

 

First Circuit

POST CON RELIEF - EFFECTIVE ORDER - VACATUR IS APPROPRIATE BASIS TO REOPEN REMOVAL PROCEEDINGS
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993); see also Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005).

Fifth Circuit

GOING BACK TO IMMIGRATION COURT AFTER POST-CONVICTION RELIEF - ISSUE MUST BE PRESENTED TO BIA BEFORE PETITIONING FOR REVIEW BY A MOTION TO REOPEN FOR EXCEPTIONAL CIRCUMSTANCES EVEN IF THE 90-DAY DEADLINE FOR FILING A MOTION TO REOPEN HAS PASSED
Toledo-Hernandez v. Mukasey, 521 F.3d 332 (5th Cir. Mar. 12, 2008) ("[I]f the BIA has never been given the opportunity to consider an issue but has the mechanisms to remedy it, even where the 90-day period for presenting a motion to reopen has passed, a petitioner must first present the issue to the Board in the form of a motion to reopen for exceptional circumstances. Toledo does not dispute that he has not raised the issue of his vacated convictions before the BIA, nor does he contend that the BIA has inadequate mechanisms to address and remedy his claim. Accordingly, this Court lacks jurisdiction to review this claim.").