Generally speaking, a court order vacating a conviction on a ground of legal invalidity that existed at the time the conviction originally came into existence is effective to eliminate the conviction for immigration purposes. See § 10.4, infra.  The 1996 statutory definition of conviction did not alter this result, see § 10.5, infra, and the BIA decision in Matter of Pickering likewise did not alter this result.  See § 10.6, infra.  The Full Faith and Credit doctrine precludes immigration courts from looking behind the face of a court order vacating a conviction.  See § 10.7, infra.  Even convictions vacated on grounds of legal invalidity based on the lack of, or inaccurate, immigration advice at plea are eliminated for immigration purposes.  See § 10.8, infra.  It is possible, however, for the immigration authorities to argue that a conviction vacated by a court which lacked jurisdiction to enter the vacatur continues to exist for immigration purposes.  See § 10.9, infra.  A great many grounds of legal invalidity may be used to vacate convictions for immigration purposes.  See § 10.10, infra.  Removal proceedings based on a conviction must be terminated immediately once it is vacated as legally invalid, even if the original criminal charges are still pending.[1]  See § § 10.30-10.32, infra.

[12] Matter of Arce-Espinosa, A92 211 181 (BIA June 30, 1998) (granting interlocutory appeal terminating deportation proceedings, despite pendency of criminal charges, where conviction had been vacated).

Third Circuit

POST CON RELIEF " DHS ALLOWED TO FILE NEW CHARGES OF REMOVAL AFTER VACATUR OF CONVICTION
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

Sixth Circuit

POST CON RELIEF " EFFECTIVE ORDER " BURDEN
Barakat v. Holder, 621 F.3d 398 (6th Cir. Aug. 18, 2010) (government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons).

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).