Vacating the conviction itself -- by direct appeal,[76] habeas corpus, coram nobis, motion to withdraw the plea or vacate the conviction, or the like[77] -- will also eliminate any adverse immigration consequences (along with all other consequences) flowing from the sentence.  When a judgment is vacated, the sentence is eliminated ab initio as having been illegal from the time it was imposed.[78] 

 

Even if there is no explicit order vacating a conviction, if the criminal court, after a motion or petition to vacate a conviction has been filed on a ground of legal invalidity, grants a new sentence that could only be imposed for a non-deportable conviction, the immigration courts must infer the deportable conviction has been vacated, and a new nondeportable conviction substituted.  In Sandoval v. INS,[79] the court granted a petition for review and remanded the case to the BIA for entry of an order terminating deportation proceedings which had been instituted on the basis of an initial felony conviction of possession of more than 30 grams of marijuana.  The defendant had filed a post-conviction motion[80] in the criminal court claiming the plea was involuntary because it had been based on defense counsel’s mistaken advice not to worry about any immigration consequences.[81]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, a sentence that would be possible only if the defendant was a first-time offender convicted of possession of 30 grams or less of marijuana. The court of appeal honored this new non-deportable sentence.

[76] If a noncitizen prevails on a direct appeal of a criminal conviction that resulted in an order of removal, the reversal of the conviction constitutes a basis on which the removal order may be reopened.  Defaria v. INS, 13 F.3d 422 (1st Cir. 1993).

[77]  United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

[78]  “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (2009), § 4.2(a), p. 4-4, citing Matter of Sirhan, 12 I. & N. DEC. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[79]  Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[80]  Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, para. 122 ff., now codified as Ill.Comp.Stat.Ann. 5/122-1 (West Supp. 2000).

[81]  “It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.”  People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985).  Reliance on counsel’s mistaken immigration advice can render the plea involuntary.  See id.; People v. Luna, 570 N.E.2d 404, 406-07 (Ill.App.Ct. 1991)(holding that post-conviction petition, which alleged that counsel failed to advise noncitizen that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

Other

BIBLIOGRAPHY " CAL POST CON " EFFECT OF CALIFORNIA ORDERS SHORTENING PROBATION ON FEDERAL SAFETY VALVE SENTENCES
John Lanahan, Another Escape Hatch in the Safety Valve: United States v. Yepez, The Federal Tatler, No. 162 (September 29, 2011).

PRACTICE ADVISORY POST CON RELIEF " MOTION TO REDUCE FELONY TO MISDEMEANOR RELIEF " WAIVERS " NON-LPR CANCELLATION " CMT CONVICTION BAR " BAR DOES NOT REQUIRE THAT THE CONVICTION ACTUALLY TRIGGER INADMISSIBILITY OR DEPORTABILITY
A reduction of a felony to a misdemeanor, in a jurisdiction in which the maximum sentence for a misdemeanor is no greater than one year, may enable a client to qualify for the Petty Offense Exception to CMT inadmissibility if the other requirements for the POE are met. INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II). See, e.g., California Penal Code 17(b)(3). If the felony is reduced to a misdemeanor, the maximum punishment for the offense is reduced to one year, which is small enough to qualify for the Petty Offense Exception. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This conviction, however, may still disqualify the client from eligibility for non-LPR cancellation. This bar for being convicted under INA 212(a) or 237(a)(2) does not require that a noncitizen actually be inadmissible or deportable under one of these statutes. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). The Ninth Circuit shares this view. Vasquez-Hernandez v. Holder, 90 F.3d 1053 (9th Cir. 2010); Mota v. Mukasey, 543 F.3d 1165 (9th Cir.2008). In deciding whether a person has been convicted of an offense under INA 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of non-LPR cancellation, the BIA will look only to language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In deciding whether a conviction is described under INA 212(a)(2), 237(a)(2), and 237(a)(3) for eligibility for non-LPR cancellation, the BIA will not consider whether the conviction was within five years of admission or other immigration requirements necessary for deportability. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). If an offense qualifies for the Petty Offense Exception and is punishable by less than a year, the noncitizen is eligible for cancellation because offense is not described under INA 237(a)(2), the crime of moral turpitude ground of deportability. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).