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Can a modification of a conviction avoid immigration consequences?

A woman and her questions

In most cases, it may be difficult to vacate a conviction of a criminal statute that has immigration consequences. Where a conviction is dismissed for reasons unrelated to the merits of the underlying proceedings, the modification will not be given any effect and the original conviction remains valid. However, if a state court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceeding, the respondent no longer has a conviction. We have previously discussed what are considered convictions for immigration purposes here.

Therefore, in order to determine the immigration consequences of a State court order modifying or amending the subject matter of a conviction, an immigration officer or judge will examine whether the State court modified or amended the subject matter of a conviction based on a substantive or procedural defect in the underlying criminal proceedings. If that is the case, the original conviction is not valid for immigration purposes avoiding immigration consequences and full effect will be given to the amendment or modification. However, if the amendment or modification was entered for reasons unrelated to the merits of the underlying criminal proceedings, full effect will not be given to the modification and the conviction will be upheld.

To assist Immigration authorities including immigration judges in making this assessment, the party bearing the relevant burden of proof should provide the Immigration authority with as much documentation and information as possible relating to the modification or amendment.

Such documentation and information could include, but is not limited to, copies of the court order and the motions filed with the court that issued the order, as well as the State law upon which the subject matter modification or amendment was based. Where an order does not identify the reasons for the corrected order, the burden may not be met without also including this additional documentation and information.

Finally, it should be noted that state laws addressing a court’s authority to modify such a conviction vary from state to state and some state laws are not clear whether a court has authority to modify a conviction based on a defect. There are some states that may grant such an authority, but only if a petition or motion to requesting the modification is made within a limited period of time. Therefore, consultation with an immigration attorney with criminal law experience in the jurisdiction where the conviction occurred is vital in these cases.

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