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.
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.