Criminal Defense of Immigrants


§ 15.38 J. After Conviction Has Been Vacated

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The steps required to give immigration effect to post-conviction relief will differ depending upon the stage of the immigration proceedings at the time criminal counsel is able successfully to obtain a solution in criminal court.  The noncitizen may, for example, need to move to reopen some level of the immigration proceedings, or ask for a remand to a lower court.  For further discussion on what steps to take, see § § 11.74-11.85 supra, and N. Tooby, Post-Conviction Relief for Immigrants, Chapter 10 (2004).[488]  See § 15.34, supra, concerning a motion to reopen or reconsider a removal order.

[488] See also AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (Jan. 17, 2007).




National Immigration Project, National Lawyers Guild, Practice Advisory, Return to the United States After Prevailing on a Petition for Review or Motion to Reopen or Reconsider, This advisory contains practical and legal suggestions for individuals seeking to return to the US after having prevailed on a petition for review or an administrative motion to reopen or reconsider before an IJ or the BIA. It also provides an overview of relevant developments over the past few years, including ICEs issuance of a return directive in February 2012. It discusses administrative steps to try to obtain return under the directive, summarizes potential litigation options if ICE refuses to facilitate or unreasonably delays return, suggests strategies for avoiding in absentia orders in removal proceedings while pursuing return, and includes a sample email to the ICE Public Advocate to initiate return. This advisory was written by the National Immigration Project/NLG, Immigrant Rights Clinic, a clinic of Washington Square Legal Services at New York University School of Law, and the American Immigration Council.
New Morton Memo: Facilitating the Return to the U.S. of Certain Lawfully Removed Aliens "This Directive describes existing ICE policy for facilitating the return to the United States of certain lawfully removed aliens whose PFRs are granted by a U.S. court of appeals or the U.S. Supreme Court." - ICE, Feb. 24, 2012.
The petitioner may file a motion with the court of appeals asking the court to order his or her return to the United States after deportation. See Federal Rule of Appellate Procedure 27(a)(1) ("An application for an order or other relief is made by motion unless otherwise provided by these rules"). The motion could be entitled a motion to enforce the courts order, or a motion to order respondent to cause petitioners return to the United States. In extreme situations, some attorneys also have filed contempt motions for refusal to comply with the courts order. The motion should inform the court of its authority to order petitioners return to the United States (see next section), the efforts made to arrange for petitioners return, the reasonableness of petitioners proposed return plan, the governments actions or position (and/or noncompliance), and it should ask the court to order petitioners return. Document the motion to the extent possible. If the only evidence of the governments refusal to return the client is oral, submit a sworn declaration from a person with personal knowledge, attesting to the conversation. While attorneys generally should avoid becoming witnesses for their clients, alternative evidence of the governments refusal to return petitioner may not be available. Thanks to Richard Breitman.