Crimes of Moral Turpitude

In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction has been vacated.[300]   Where the legal basis of a finding of deportability has been nullified, a new deportation hearing is warranted.[301] 

The BIA, citing 8 CFR § § 1003.2(d) and 1003.23(b)(1), takes the position that the BIA and IJs lack jurisdiction to review motions filed by people who have been deported or have departed and that any departure from the United States constitutes the withdrawal of a pending motion.[302]  The circuit courts are split on this issue.[303] 

A deportation proceeding may also be reopened, even after a criminal conviction has initially become final, if a criminal court accepts a late appeal of the criminal conviction.  The conviction is then on direct appeal, and therefore nonfinal, and thus is no longer a sufficient basis on which to ground a deportation or removal order.[304]

PRACTICE POINTER: The rules limiting motions to reopen must be consulted in this connection.[305]  See Post-Deportation Human Rights Project, Practice Advisory, filing Post-Deportation Motions to Reopen or Reconsider, www.bc.edu/postdeportation.

[300] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966); Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971) (orderly administration of justice precluded examination of validity of a conviction, but case was remanded when sentence vacated); Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967); Ordaz-Machado v. Rivkind, 669 F.Supp. 1068, 1070 (S.D. Fla. 1987) (deportation order may be based on conviction unless it is vacated in a post-conviction motion).  But see Cruz-Godonez v. Ashcroft, 40 Fed.Appx. 565 (9th Cir. 2002) (court of appeals lacked jurisdiction to reopen deportation order, since respondent had been deported for an aggravated felony, even though sentence upon which deportation order was based had later been reduced by state court, since respondent was an aggravated felon at the time of his removal).

[301] Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (the overturning of a conviction upon which deportability was premised is an appropriate basis for reopening administrative proceedings); Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (BIA acted arbitrarily, irrationally, or contrary to law in denying motion to reopen removal proceedings after conviction had been vacated, even where order vacating conviction did not specify whether the conviction was vacated on ground of invalidity or solely for rehabilitative or immigration purposes); Cruz v. Att’y Gen. of the US, 452 F.3d 240 (3d Cir. Jun. 21, 2006) (BIA erred in failing to grant motion to reopen based upon new evidence that conviction upon which removal order was based has been recently vacated); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). Bridges v. Wixon, 326 U.S. 135, 156, 65 S.Ct. 1443, 1453 (1945); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981).  But see De Araujo v. Gonzales, 457 F.3d 146, 150 (1st Cir. Aug. 11, 2006) (no due process violation where BIA denied request to grant sua sponte motion on the basis of recently vacated convictions, allowing noncitizen to apply for relief, where BIA denied motion on the basis that it would deny any application for relief as a matter of discretion because noncitizen, “had previously been convicted of four criminal offenses, and while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed.”); Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated).

[302] Matter of GNC, 22 I. & N. Dec. 281, 288 (BIA 1998).

[303] Compare William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] § 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. § 1003.2(d), containing the post-departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid."); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (8 CFR § 3.23(b)(1) “is phrased in the present tense and so by its terms applies only to a person who departs the United States while s/he ‘is the subject of removal … proceedings.’”; once a person leaves the United States, s/he is no longer subject to proceedings; where a noncitizen has been removed, and then files a motion to reopen, the proceedings have been completed and 8 CFR § 3.23(b)(1) is no longer applicable); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (where a person’s conviction is vacated, s/he has a right to file a motion to reopen, despite having been removed, if the conviction was a “key part” of the removal order), relying on Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (order of deportation based on certain vacated convictions are not legally valid, and thus do not bar motions to reopen); Contreras-Rodriguez v. U.S. Atty. Gen., 462 F.3d 1314 (11th Cir. 2006) (the statute and regulation governing motions to rescind in absentia orders, INA § 240(b)(5)(C) and 8 CFR § 1003.23(b)(4)(ii), allow a person who did not receive notice to file a motion to reopen “at any time,” even if the client has departed the United States); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (8 CFR § 1003.2(d) inapplicable to a motion to reopen to rescind an in absentia order where the noncitizen had departed the United States before the commencement of proceedings); with Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. § 1105a(c) (repealed 1996) (“An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.”) did not invalidate the regulation, 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”); Navarro-Mianda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (8 CFR § 3.2(d) trumps the BIA’s sua sponte authority to reopen and reconsider a case at any time).

[304] See Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[305] 8 C.F.R. § § 1003.2(c)(2), 1003.23(b)(4)(i).