Crimes of Moral Turpitude


§ 10.2 II. Elimination of a Conviction

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The DHS is increasingly challenging the effectiveness of a criminal court order to vacate a criminal conviction, for purposes of eliminating the adverse immigration consequences of the conviction.  It is therefore important to be very clear on what is required of an order vacating a criminal conviction so that the vacatur is accepted in the immigration context as effectively eliminating the immigration consequences of the conviction.


A conviction that is vacated as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[8]  This also allows resentencing in federal court: “[A] defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction.”[9]


This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, etc., so long as the order recites that the conviction is vacated because the conviction is legally invalid.


If a conviction is vacated on purely humanitarian grounds, solely to eliminate the immigration consequences, or on the basis of state rehabilitative statutes, without any claim that the conviction is legally invalid, the conviction generally continues to exist to trigger adverse immigration consequences, and the rehabilitative post-conviction order does not effectively remove the adverse immigration consequences of the conviction.[10]  There is an exception to this general rule, so far, only in the Ninth Circuit, and limited to a small class of first-offense controlled substances offenses, principally simple possession and equivalent or less serious offenses that are not forbidden under federal controlled substances statutes.[11]

[8] See § 10.4, infra.

[9] United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999), quoted in United States v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001), cert. denied, 122 S.Ct. 383 (2001).

[10] See § 10.11, infra.

[11]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 6.14 (4th ed. 2007).