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.
Some of our more substantive work is done in the field of Post-Conviction Relief. In many instances, an individual may have pleaded guilty to a criminal offense without understanding the immigration consequences of doing so. In order for our attorneys to evaluate the viability of withdrawing a plea or reopening a case, it is essential that any prospective client obtain a transcript of the criminal proceedings.