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Legal Citations for ILW.COM's Seminar
"Immigration Consequences of Criminal Convictions: Problems, Solutions and Best Practices"
Part 3 held on March 20, 2003

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Post Con Relief

An Order Vacating a Conviction as Legally Invalid Eliminates the Conviction for All Immigration Purposes

The long-standing rule is that a conviction vacated in criminal court as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[1] The conviction is viewed as illegal ab initio [2] and may not be used as a basis for deportation, removal, exclusion, statutory ineligibility to show good moral character, or any other immigration purpose.[3] Removal proceedings must be terminated immediately once a conviction is vacated as legally invalid, even if the original criminal charges are pending.[4]

However, convictions eliminated under state rehabilitative statutes without any claim of legal invalidity generally will continue to exist for immigration purposes. In Matter of Roldan,[5] the Board of Immigration Appeals relied on the new IIRAIRA statutory definition of conviction[6] to hold that a state court action to "expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute" does not eliminate the conviction for immigration purposes. Roldan has been extended nationwide by the BIA to eliminate the effectiveness of state rehabilitative relief for all categories of convictions.[7] The one exception 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.[8]

The Board of Immigration Appeals has indicated that its decision in Roldan was limited to situations in which a state court clears a state conviction from the record pursuant to a "state rehabilitative statute," rather than on a ground of legal invalidity.[9] "Our decision is limited to those circumstances where an alien has been the beneficiary of a state rehabilitative statute, which purports to erase the record of guilt. It does not address the situation where the alien has had his or her conviction vacated by a state on direct appeal . . . or on grounds relating to a violation of a fundamental statutory or constitutional right in the underlying criminal proceedings."[10] The Board has also reaffirmed since Roldan that a post-conviction sentencing modification is effective to negate the immigration consequences of the sentence because it is the last sentence that controls for immigration purposes.[11]

The Ninth Circuit has also explained that the new definition of conviction has not altered the prior law:[12]

The INS concedes, and we agree, that Congress did not intend that a conviction subsequently overturned on the merits (either because of a finding of insufficient evidence or because of a basic procedural inadequacy, such as a violation of the right to counsel), could serve as the basis for deportation. Thus, the INS acknowledges that a court's subsequent treatment of a conviction, after it has been entered, may in some cases serve to prohibit its use for immigration purposes.[13]

The court continued:

The INS's concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant's guilt. The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming. See Neder v. United States, 527 U.S. 1, 8 (1999). We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[14]

The Ninth Circuit concluded that the purpose of the new definition was to alter the nature of the disposition that is considered a conviction in the first place, rather than to change any part of the law affecting the circumstances under which a conviction would be considered to have been eliminated by some later judicial action.[15]

Therefore, the new definition of conviction does not alter the long-standing rule that a criminal court order vacating a conviction on some ground of legal invalidity effectively eliminates the conviction for all immigration purposes. Since the result of issuance of the order is to vacate the conviction completely, there is no conviction to be held against the defendant for immigration purposes.[16] The INS has conceded as much in other cases as well.[17]

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.,[18] 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.[19]

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:

The majority states that five circuits, including this Court, have concluded that a "vacated or otherwise expunged state conviction remains valid under 1101(a)(48)(A)." Maj. op. at 835. Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative provisions or expunged convictions remain valid for the purposes of 1101(a)(48)(a), I would emphasize that none of the convictions in the five cases cited by the majority was vacated based on the merits of the underlying criminal proceeding, i.e., a violation of a statutory or constitutional right with respect to the criminal conviction. Indeed, as set forth below, two of those sister circuit opinions contain language recognizing a distinction between the two categories of vacaturs: vacaturs on the merits versus rehabilitative vacaturs.[20]

The concurrence further explained that because Renteria's conviction was not vacated on legal grounds, the majority opinion cannot be understood as altering the long-standing definition of conviction:

The common thread running through the above cases is that convictions set aside or vacated based on events subsequent to the conviction-not because of a defect in the conviction itself-constitute convictions within the meaning of 1101(a)(48)(A). Likewise, in the instant case, Renteria's conviction was not vacated because there was a valid challenge to the underlying criminal proceedings. Thus, although I agree that the above cases indicate that Renteria's vacated conviction qualifies as a conviction under 1101(a)(48)(A), I would tailor the analysis more narrowly to the facts at issue. Specifically, I would distinguish the instant vacatur from cases involving convictions vacated because of a defect in the criminal proceedings. . . .

Applying the majority's holding to vacaturs based on the merits would result in what I believe to be an absurd result and certainly not in keeping with the notion of American judicial traditions. For instance, if the courts determine there was insufficient evidence, an involuntary guilty plea or a violation of other constitutional or statutory rights, we customarily vacate such a conviction. It would seem to be an absurd result to interpret the provision to encompass convictions that state or federal courts have deemed deficient on the merits. In my view, such a judicial determination operates to negate a conviction with respect to the merits. In summary, I do not believe the majority opinion should be understood to indicate that a conviction that has been vacated or reversed based on a defect in the underlying criminal proceeding constitutes a conviction under 1101(a)(48)(A).[21]

Although the specifics of the order vacating the conviction are not explained in either opinion, the concurring judge views the order as vacating the conviction on humanitarian grounds, rather than as legally invalid. As a result, he finds that any discussion of the effectiveness of a conviction vacated on the merits is "entirely dicta in that the case at bar did not involve such a vacatur."[22]

Thus, although the INS is likely to continue pressing the argument that a vacated conviction remains valid under the IRRAIRA definition of conviction and citing this decision in support, it should be pointed out that the Fifth's Circuit holding in this regard is dicta and should be disregarded.

[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]"Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court's action will eliminate the conviction for most immigration purposes." D. Kesselbrenner & L. Rosenberg, IMMIGRATION LAW AND CRIMES (1999), 4.2(a), p. 4-4, citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).
[3]It is important to be aware of less obvious effects of a conviction, as well, which may also be eliminated if the conviction is vacated. For example, if a noncitizen is charged with removal on account of a conviction of a crime involving moral turpitude for which a sentence of one year may be imposed, and that maximum sentence applies because of the existence of a prior conviction which has now been vacated, the noncitizen is no longer removable. The deportation ground is written in the present tense ("sentence . . . may be imposed"), INA 237(a)(2)(A)(i)(II), 8 U.S.C. 1227(a)(2)(A)(i)(II). INA 237(a)(2)(A)(i)(II), 8 U.S.C. 1227(a)(2)(A)(i)(II), and the condition precedent to the higher maximum sentence no longer exists. Therefore, it is no longer true that a one-year sentence "may be imposed." Therefore, the conviction no longer triggers removal. (This argument does not apply as well to the petty offense exception situation, since that statute is written in the past tense, to apply if the maximum sentence "did not exceed" one year. INA 212(a)(2)(A)(ii)(II); 8 U.S.C. 1182(a)(2)(A)(ii)(II).) Similarly, a second federal conviction of telephone wagering constitutes an aggravated felony. INA 101(a)(43)(J); 8 U.S.C. 1101(a)(43)(J)("an offense described in section 1084 [of Title 18] (if it is a second or subsequent offense)"). If the first conviction is vacated as legally invalid, arguably the second offense is no longer a second conviction, and thus cannot constitute an aggravated felony.
[4]In re 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.)
[5]Matter of Roldan, Int. Dec. 3377 (BIA 1999)(en banc).
[6]INA 101(a)(48)(A); 8 U.S.C. 1101(a)(48)(A).
[7]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).
[8]Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).
[9]Matter of Roldan, Int. Dec. 3377 (BIA 1999)(en banc).
[10]Id. at 22.
[11]See In re Song, 23 I. & N. Dec. 173 (BIA 2001) (finding that the new definition of "conviction" and the decision of In re Roldan, does not alter the fact that vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony because the latest sentence controls for immigration purposes).
[12]NA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).
[13]Lujan-Armendariz v. INS, 222 F.3d 728, 747(9th Cir. 2000)(footnote 30 omitted).
[14]Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).
[15]"Instead, the purpose of the amendment [i.e., the new statutory definition of 'conviction'] appears to have been to establish the time at which a particular type of proceeding, specifically, deferred adjudication, results in a conviction for immigration purposes -- not to alter the long-standing rule that a conviction entered but subsequently vacated or set aside cannot serve as the basis for a deportation order." Lujan-Armendariz v. INS, 222 F.3d 728, 745 (9th Cir. 2000).
[16]Hernandez-Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (5th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I&N 592 (BIA 1970); see also Matter of O., 7 I&N 171 (BIA 1956); Matter of Kaneda, 16 I&N 677, 680 (BIA 1979).
[17]In Cruz-Sanchez v. INS, 438 F.2d 1087 (9th Cir. 1971), the INS pointed out that "if petitioner is successful in challenging his conviction in the court which rendered the judgment, he may move to reopen the deportation proceeding." Id. at p. 1089. Petitioner did so, and the Ninth Circuit, on rehearing, recognized that the criminal court "has now vacated the sentence . . . upon which the Order of Deportation sought to be reviewed was based." Ibid. The court therefore remanded the matter to the INS, with directions to give the matter further consideration in light of the vacation of the sentence. Ibid.
[18]Renteria-Gonzalez v. I.N.S., 310 F.3d 825, 829 (5th Cir. 2002).
[19]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.")
[20]Id. at 842 (Benavides, J., specially concurring) (citing Herrera-Inirio v. I.N.S., 208 F.3d 299, 304-06 (1st Cir.2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n. 8 2001 WL 401484 (4th Cir.2001) (foreign conviction allegedly expunged); Moosa v. I.N.S., 171 F.3d 994, 1005-06 (5th Cir.1999) (state delayed adjudication of guilt); Murillo-Espinoza v. I.N.S., 261 F.3d 771, 773-74 (9th Cir.2001) (state conviction expunged); Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1312-17 (11th Cir.2001); In re Rodriguez-Ruiz, Interim Decision 3436 (BIA 2000)).
[21]Renteria, 310 F.3d at 841-43 (Benavides, J., specially concurring).
[22]Id. at 843 fn. 4.