Crimes of Moral Turpitude

The DHS may challenge orders vacating convictions on the basis that they are beyond the jurisdiction of the criminal court.[100]  In order to ensure that the immigration consequences of the conviction are eliminated, however, it is only necessary to establish that the court vacating the conviction held jurisdiction over the vehicle (e.g., coram nobis) by which the conviction was vacated.[101]  It is not necessary to demonstrate that the noncitizen was substantively entitled to the post-conviction relief.  The immigration and federal courts will not relitigate the right to relief itself.

            In the Fifth Circuit, however, the government cannot attack the effectiveness of an order vacating a conviction, for lack of jurisdiction, because it did not appeal the order originally.[102]

            The DHS has cited United States v. Tablie,[103] in arguing that a district court lacks jurisdiction to issue the writ where the court issues the writ as a mechanism to avoid the immigration consequences of a criminal conviction.[104]  The DHS has also argued that “even if the court had jurisdiction to issue the writ, the respondent did not fulfill the requirements for its issuance.”[105]

These arguments have not prevailed in the Board of Immigration Appeals, where the noncitizen employed a procedural vehicle over which the criminal court had jurisdiction to attack the conviction.  Once it is established that the court vacating the conviction has jurisdiction over the cause of action, the immigration court will not go further to determine whether the defendant made a showing of each element necessary to justify relief, as that is a matter within the competence of the criminal court, rather than the immigration court.  For example, one BIA panel held:

whether a court has jurisdiction to change its orders is a proper and necessary issue for consideration in removal proceedings.  Matter of Sirhan, 13 I&N Dec. 592, 595 (BIA 1970) (terminating proceedings where a grant of writ of coram nobis vacated alien’s conviction in superior court of California).  The Supreme Court has held that federal courts have jurisdiction over writs of coram nobis.  United States v. Morgan, 346 U.S. 502 (1954).  See also United States v. LaPlante, 57 F.3d 252 (2d Cir. 1995)(coram nobis available to redress an adverse consequence resulting from an illegally imposed criminal conviction or sentence); United States v. Castro, 26 F.3d 557 (5th Cir. 1994)(coram nobis granted based upon ineffective assistance of counsel at sentencing where defense counsel had failed to request judicial recommendation against deportation); Matter of Sirhan, supra, at 597.  United States v. Tablie, supra, is inapposite as the issue was whether the All Writs Act, 28 U.S.C. § 1651 (1994), conferred an independent source of jurisdiction in a case where the defendant could not obtain relief from a writ of audita querela.  The record does not indicate that the district court’s order was appealed, and we will not look behind the district court order.  Further, the court order does not mention that it considered the immigration consequences in issuing the writ, and despite counsels’ representations about the court’s reasoning, we will not look beyond the face of the documents presented where, as here, they provide the facts considered by the district court.[106]

For cases concerning questions regarding a court’s jurisdiction to grant post-conviction relief, see Matter of Sirhan, Matter of O’Sullivan, and Matter of H.[107]  If the DHS fails to show the criminal court lacked jurisdiction, the court’s order vacating the conviction will eliminate the conviction for deportation purposes, even though the avoidance of immigration consequences appears to have been the primary purpose of the criminal court’s action.[108]  The DHS must make its showing by clear and convincing evidence, or the conviction still exists.

[100] Cf. United States v. Tablie, 166 F.3d 505 (2d Cir. 1999) (per curiam) (federal All Writs Act did not confer independent jurisdiction to vacate legally valid federal conviction); United States v. Morales, 328 F.3d 1202 (9th Cir. May 16, 2003) (district court did not have jurisdiction to modify or vacate a sentence imposing a fine on a former IRS agent after convictions for acceptance of bribes).

[101] Matter of Corso, No. A18 079 714 (BIA Dec. 29, 1999). 

[102] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Feb 27, 2003).

[103] United States v. Tablie, 166 F.3d 505 (2d Cir. 1999) (per curiam).

[104] Matter of Corso, No. A18 079 714 (BIA Dec. 29, 1999), p. 2.

[105] Ibid.

[106] Matter of Corso, supra, at pp. 2-3.

[107] Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970) (California superior court order reducing sentence); Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (INS made no showing that Michigan recorder’s court lacked jurisdiction to order new trial and nolle prosequi); Matter of H, 9 I. & N. Dec. 460 (BIA 1961) (Michigan justice of peace lacked power to grant new trial).

[108] Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970) (California reduction of sentence to less than one year); Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (Michigan).