Collateral Attack On Conviction

Sometimes the only mechanism for solving a criminal immigration case is to return to the Court of conviction in order to vacate or alter a criminal conviction.

EXPUNGEMENTS (and other forms of rehabilitative relief) DO NOT ERADICATE THE CRIME FOR IMMIGRATION PURPOSES!!!!! [There is a narrow exception to this rule within the jurisdiction of the 9th Circuit for first time simple possession offenses from before July 14, 2011). In fact, expunging a conviction could potentially make it more difficult to vacate later. Nonetheless, the fact that a crime has been expunged can favorably influence certain discretionary decisions.

In order to be effective for immigration purposes the conviction needs to be vacated based on a legal, constitutional, or procedural error. Common mechanisms for doing this include:

  • Statutory Motions (in California, we have some very powerful statutory motions specifically designed to benefit aliens. Examples are California Penal Code sections 1016.5, 1473.3 , and 1203.43);
  • Common Law Motions which include the Writ of Habeas Corpus and the Writ of Error Coram Nobis.

Sometimes the conviction does not need to vacated but merely altered. This has become less of a necessity in California since the enactment of Cal. Pen. C. §18.5. However, it is important to know that a sentence modification IS effective for immigration purposes (Matter of Song).