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Legal Citations for ILW.COM's Seminar
"Immigration Consequences of Criminal Convictions: Problems, Solutions and Best Practices"
Part 1 held on January 23, 2003

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Citations From Lory Rosenberg

Here is a (non-exclusive) listing of BIA and circuit court cases illustrating the current interpretations of the statutory definition of a conviction.

Selected Board cases:

  • Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988) (pre-1996 def. of conviction)
  • Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) (IIRIRA def. of conviction and FFOA)
  • Matter of Devison, 22 I&N 1362 (BIA 2000) (youthful offender exception to conviction)
  • Matter of Rodriguez-Ruiz, 22 I&N Dec.1378, 1379 (BIA 2000) (non-rehabilitative vacation)
  • Matter of Salazar, 23 I&N Dec. 223, 231 (BIA 2002) (rejection of FFOA exception to conviction)

Selected circuit court cases:

  • Moosa v. INS, 171 F.3d 994, 1002 (5th Cir. 1999 (conviction, finality of conviction)
  • United States v. Campbell, 167 F3d, 84, 98 (2d Cir. 1999) (conviction, non-effect of rehabilitative vacation)
  • Lujan-Armendariz v. INS, 222 F. 3d 728 (9th Cir. 2000) (conviction, FFOA exception to conviction)
  • Sandoval v. I.N.S., 240 F.3d 577, 583-84 (7th Cir. 2001) (vacation exception to conviction)
  • Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000) (conviction, no rehabilitative exceptions)
  • Renteria-Gonzalez v. INS, 310 F. 3rd 825 (5th Circuit 2002) (conviction, no vacation of conviction)

Citations From Dan Kesselbrenner

Citations to BIA and circuit court reading of "conviction" under the INA:

  • Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (holding that expunged foreign first-offense possession of a controlled substance offense is not a conviction).
  • Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (remanding "guilty filed" determination to determine if any punishment).
  • Matter of M-U, 2 I&N Dec. 92 (BIA 1944) (admission of the commission of "theft ' in a State jurisdiction (California), where the offense is considered to be an act of juvenile delinquency because of the age of the offender, is merely an admission of juvenile delinquency for which the alien is not deportable). 2 I&N Dec. 92 (1944) 2 I. & N. Dec. 92 (BIA 1944)
Additional citations from Dan Kesselbrenner:

  • Dashto v. INS 59 F.3d 697 (7th Cir. 1995) (treating clerk's informal notation as insufficient to prove conviction)
  • United States v. Minker, 350 US 179 (1956) (holding that government could not compel testimony from denaturalization subject)
  • Matter of Pichardo, 21 I&N 330 (BIA 1996) (finding that the INS failed to prove firearm deportability notwithstanding respondent's testimony that he used a gun to commit an offense)
  • Matter of Texeira, 21 I&N 316 (BIA 1996) (holding that police reports were not part of record of conviction)
  • Dan Kesselbrenner and Lory D Rosenberg, Immigration Law and Crimes (2002)

Citations From Norton Tooby

  1. A conviction vacated in criminal court as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[1]
  2. Unfortunately, the Fifth Circuit has taken the contrary view, refusing to halt removal proceedings where a federal conviction was vacated under the All Writs Act, 28 U.S.C. 1651. In Renteria-Gonzalez v. I.N.S.,[2] without citing any of the cases discussed herein, the court found in a conclusory fashion that "vacated" convictions remain valid for immigration purposes. The court's predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[3] In a special concurrence, Judge Benavides aptly pointed out that the majority opinion fails to recognize the distinction between convictions vacated on legal grounds as opposed to those erased under rehabilitative statutes, and since Renteria's conviction was expunged on rehabilitative grounds, any discussion by the majority concerning the effectiveness of an order vacating a conviction on a ground of legal invalidity is dictum.[4]
  3. Convictions eliminated under state rehabilitative statutes without any claim of legal invalidity generally will continue to exist for immigration purposes.[5] Roldan has been extended nationwide by the BIA to eliminate the effectiveness of state rehabilitative relief for all categories of convictions.[6]
  4. The one exception to the ineffectiveness of state rehabilitative relief exists in the Ninth Circuit for drug crimes that would be eligible for prosecution under the Federal First Offender Act had the case been prosecuted in federal court.[7] Foreign expungements are given the same effect under the same circumstances but only in the Ninth Circuit.[8]

[1]See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled noncitizen to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport alien whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of noncitizen based on invalid conviction could not be considered "lawfully executed"); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).
[2]Renteria-Gonzalez v. I.N.S., 310 F.3d 825, 829 (5th Cir. 2002).
[3]Id. at 833-34 ("Although it may seem counterintuitive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws.")
[4]Renteria, 310 F.3d at 841-43 (Benavides, J., specially concurring).
[5]Matter of Roldan, Int. Dec. 3377 (BIA 1999)(en banc).
[6]Matter of Salazar-Regino, 23 I & N Dec. 223 (BIA 2002) (en banc) (upholding Matter of Roldan, Int. Dec. 3399 (BIA 1999) (en banc) against equal protection challenge and finding that expungements are not effective to eliminate any conviction, including first-offense simple possession, for immigration purposes, except in the Ninth Circuit).
[7]Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).
[8]Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001).

Additional citations from Norton Tooby:

  • N. Tooby, Aggravated Felonies (2002).
  • N. Tooby, California Expungement Manual (1997, 2000).
  • N. Tooby & J. Foster, Crimes of Moral Turpitude: The Complete Guide (2002).
  • N. Tooby, with Katherine A. Brady, Criminal Defense of Immigrants (Nat'l ed. 2002).
  • N. Tooby, Post-Conviction Relief for Immigrants (Nat'l ed. 2002).
  • N. Tooby, Vacating Criminal Convictions: A Case Study (2000).
  • N. Tooby, California Post-Conviction Relief for Immigrants (2001).
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