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Criminal PCR Application Does Not Always Save From Deportation

On Behalf of | Nov 11, 2019 | Criminal Law & Municipal Court |

Being convicted of a crime is often one of the surest ways for a foreign national to get caught up in the deportation system and possibly removed from the United States. Unless the conviction is not a Crime Involving Moral Turpitude, Aggravated Felony, or other type of deportable offense, there may be little relief for the non-US citizen unless he/she qualifies for some sort of waiver. In these types of situations, immigrants may need to explore whether it is possible to vacate or modify the criminal conviction itself through some sort of post-conviction relief application. Under certain circumstances, overturning or amending the original conviction may significantly change whether someone is deportable or not. For example, many theft aggravated felonies are triggered upon conviction of a theft crime where a sentence of a year or more is imposed. If the sentence is later altered to 364 days, that conviction may no longer be considered an aggravated felony, an important legal determination which can make all the difference.

This past October, the Attorney General issued an opinion fleshing out the effect of state court orders which modify, clarify, or otherwise affect a criminal alien’s sentence. In Matter of Thomas and Thompson, 27 I & N Dec. 674 (A.G. 2019), Attorney General Barr held that such post-conviction orders will be given effect for immigration purposes only when the orders are based on procedural or substantive defects in the underlying proceedings. In other words, the basis for the change must be due to a substantive error, e.g., something constitutional or significant that affects the fairness or integrity of the proceedings. This might be in the form of ineffective assistance of counsel or a denial of due process. On the other hand, changes that are motivated by reasons unrelated to the merits of the case, such as an applicant’s rehabilitation or what hardships would be engendered by adverse immigration consequences, will not have the same legal effect for immigration purposes. To the extent that previous Board of Immigration Appeals caselaw held so, those cases are now overruled.

What this means in practical terms is that foreign nationals seeking to alter or overturn their criminal convictions or sentences must carefully consult with a good criminal law attorney to determine what grounds exist to reopen and change the conviction or sentence. If the post-conviction relief application is premised on the defendant’s reformation or hardships-rather than constitutional or substantive error-it is likely to have little impact on the immigration proceedings, even if successful.

The above is general information only. It is not intended as legal advice nor intended to create an attorney-client relationship. If you need advice, please consult with an attorney.