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Immigration May Change Effect of PCRs

| Jun 10, 2019 | Criminal Law & Municipal Court |

In a disturbing development, the Attorney General indicated in Matter of Thomas and Thompson, 27 I & N Dec. 556 (A.G. 2019), that he will be considering and ultimately rendering a decision on the immigration impact of convictions that are subsequently altered. At issue is “whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled ‘vacatur,’ ‘modification,’ ‘clarification,’ or some other term-should be taken into consideration in determining the immigration consequences of the conviction.” Put plainly, the AG will be examining what effect a modified, vacated, or overturned conviction will have on whether someone is deportable, inadmissible, or qualifies for some sort of relief or benefit. This issue is mostly encountered in the context of a “PCR” or post-conviction relief application where a criminal case is subsequently re-opened. Once a case is reopened, the conviction is normally vacated, and the charge(s) and/or punishment are disposed of in an alternate manner, sometimes in the form of dismissal, amendment of charges, or reduction of sentence. Depending on what result is arrived at, an individual’s immigration situation may change. Someone who may have formerly been held deportable on the basis of a crime involving moral turpitude may no longer be removable if the underlying conviction is vacated or changed into an offense that is not one involving moral turpitude. Ever since the Supreme Court’s decision in Padilla v. Kentucky in 2010, droves of foreign nationals with criminal convictions have attempted to stave off deportation by reopening their criminal cases due to ineffective assistance of counsel to warn them of the immigration consequences of their convictions. Some have been successful; some not.

As it is, the current state of the law regarding the immigration consequences of pcrs is controlled by the BIA’s decision in Matter of Pickering, 23 I & N Dec. 621 (BIA 2003). In that case, the Board held that convictions vacated solely on the basis of rehabilitation or hardship considerations-rather than procedural or substantive defects that occurred in the criminal proceeding-will not vitiate the legal effect of a “conviction” for immigration purposes. In other words, a conviction that is vacated or altered merely to avoid adverse immigration consequences will have no effect, even if its criminal significance has been nullified. On the other hand, the legal significance of a conviction reversed due to constitutional defects or serious errors in the criminal process (such as ineffective assistance of counsel) must be accorded full faith and credit by our immigration system.

Depending on how the Attorney General rules, this may all change in the near future. Given the history and trend of previous AG immigration decisions during this Administration, this ominous decision to review cases of this nature promises to have tremendous ramifications.

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