Does expungement of a criminal record remove immigration consequences?

Generally, no. Under INA § 101(a)(48)(A) and BIA precedent, a simple expungement that does not vacate the underlying conviction on constitutional or legal grounds does not eliminate it for immigration purposes. The conviction still counts. Only a vacatur based on a legal defect in the original proceedings — not purely for immigration benefit — can remove the immigration consequence. Consult an immigration attorney to review your specific state's expungement law.

Can I reopen my immigration case after my conviction is vacated?

Yes. Under INA § 240(c)(7) and 8 CFR § 1003.23, you may file a motion to reopen removal proceedings with the immigration court. You must submit a certified copy of the vacatur order. Motions to reopen are generally due within 90 days of a final removal order, but exceptions apply when the basis is a change in underlying legal facts, such as a vacated conviction. Act immediately after the vacatur is granted.

What is the Padilla warning and how does it help immigrants fight a conviction?

The Padilla warning refers to the constitutional duty established in Padilla v. Kentucky, 559 U.S. 356 (2010): defense attorneys must specifically advise non-citizen clients that a guilty plea may result in deportation. If your defense lawyer failed to give this warning before you pled guilty, you may have grounds for an ineffective assistance of counsel claim, allowing you to move to vacate the plea in state court. This is one of the strongest grounds for post-conviction relief in immigration cases.

Does reducing a felony to a misdemeanor help with immigration consequences?

Sometimes. If a state court reduces a felony to a misdemeanor and the sentence imposed is then under one year, the offense may no longer qualify as an 'aggravated felony' under INA § 101(a)(43), which requires a sentence of one year or more for many offenses. However, a crime involving moral turpitude (CIMT) or a controlled substance offense may still trigger deportability regardless of the sentence length. Always analyze the specific immigration ground of deportability before pursuing a reduction.

Post-Conviction Relief for Immigrants: Avoid Deportation

Immigrants with a criminal conviction can often vacate or modify that conviction through post-conviction relief to eliminate its immigration consequences. A successful vacatur under Padilla v. Kentucky (2010) or a state equivalent can remove the conviction from immigration records entirely. You must act in state court first, then notify USCIS or the immigration court. Consult an attorney at DOJ or a qualified immigration lawyer immediately.

What Is Post-Conviction Relief and How Does It Help Immigrants?

Post-conviction relief (PCR) refers to legal remedies that allow a person to challenge, vacate, or modify a criminal conviction after sentencing. For immigrants, this is critical: under INA § 101(a)(48)(A), a "conviction" for immigration purposes requires either a formal judgment of guilt or a guilty plea. If the conviction is vacated on constitutional or legal grounds, it may no longer count as a "conviction" under immigration law, potentially stopping a deportation proceeding or clearing a path to adjustment of status.

Ilya Fishkin, immigration attorney regularly advises immigrant clients on the intersection of criminal and immigration law — an area where the stakes could not be higher.

When Post-Conviction Relief Applies: Key Conditions

Ineffective assistance of counsel: Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense attorneys are constitutionally required to advise non-citizen clients of deportation consequences before a guilty plea. A failure to do so can be grounds for vacatur.
Lack of knowing and voluntary plea: If you were not properly informed of immigration consequences, your plea may not have been "knowing and voluntary" as required by the Sixth Amendment.
Newly discovered evidence: Evidence that was unavailable at trial may support a motion for a new trial or vacatur.
Statutory eligibility for expungement or reduction: Some states allow reduction of a felony to a misdemeanor or expungement, which can affect the immigration classification of the offense.
Deportation proceedings already initiated: PCR is available even if an immigration court has issued an order of removal, though timing is urgent.

Step-by-Step: How to Pursue Post-Conviction Relief as an Immigrant

Hire a dual-expertise attorney: Retain a lawyer experienced in both criminal defense and immigration law before taking any action. Mistakes in state court can permanently harm your immigration case.
Obtain your full criminal record: Request certified copies of all court documents, plea transcripts, and sentencing records from the relevant state court.
Assess the immigration consequence of the conviction: Identify whether the offense is classified as an aggravated felony (INA § 101(a)(43)), a crime involving moral turpitude (CIMT), or a controlled substance violation — each carries different immigration consequences.
File a motion to vacate or withdraw the plea: Your attorney will file the appropriate motion in state court — such as a Writ of Habeas Corpus, a motion under state PCR statutes, or a Coram Nobis petition — citing constitutional grounds including Padilla.
Attend the state court hearing: Present evidence and argument. If the court grants vacatur, obtain a certified copy of the vacatur order immediately.
Submit the vacatur order to USCIS or immigration court: Provide the certified vacatur order to USCIS (for pending applications) or file a motion to reopen with the immigration court under 8 CFR § 1003.23 if removal proceedings are pending or an order of removal was issued.

What the Law Says: Key Statutes and Cases

The legal framework governing post-conviction relief and its immigration consequences includes:

INA § 101(a)(48)(A) — defines "conviction" for immigration purposes. A vacatur on constitutional or legal grounds eliminates the conviction from this definition.
INA § 240(c)(7) — allows a motion to reopen removal proceedings based on new evidence, including a vacatur order.
8 CFR § 1003.23 — governs motions to reopen before immigration courts. Generally, motions must be filed within 90 days of a final order of removal, but exceptions exist when the basis is a change in law or newly available evidence.
Padilla v. Kentucky, 559 U.S. 356 (2010) — Supreme Court ruled that defense counsel must advise non-citizen clients of deportation consequences; failure constitutes ineffective assistance under the Sixth Amendment.
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) — Board of Immigration Appeals held that a vacatur entered solely to avoid immigration consequences, not on the merits, does not eliminate the conviction for immigration purposes. The vacatur must be based on legal or constitutional defects in the original proceeding.

For official guidance on how USCIS treats criminal convictions, visit USCIS.gov.

This material is for informational purposes only and does not constitute legal advice