Collateral Attacks on Prior Deportation Orders and Criminal Convictions

By Attorneys Robert L. Reeves and Eric R. Welsh

Past criminal convictions and prior deportation or removal orders can haunt a person seeking to immigrate to the United States.  An intending immigrant can face permanent bars on the basis of a prior criminal conviction, a prior unlawful entry, or a prior order of deportation or removal.  In some instances, the prior offense may form the basis of a charge of inadmissibility or removability, and the immigrant applicant might find herself in a removal proceeding (immigration court).  If a prior deportation order is involved, Immigration & Customs Enforcement (ICE) might attempt to enforce the order and physically remove the alien without ever appearing before a judge.

In some cases, an alien may be able to apply at U.S. Citizenship & Immigration Services or the immigration court for a waiver or an equity-based application that, if approved, will permit the alien to receive a green card.  In other situations, however, the only option might be a “collateral attack” against the criminal conviction or the deportation/removal order.  A “collateral attack” is a challenge to the underlying conviction or order itself.  For example, if an alien’s criminal conviction is based on a coerced confession that violates the alien’s constitutional rights, the alien might be able to collaterally attack the conviction and obtain a judicial decree overturning it.  If successful, the alien might be able to apply for immigration relief without facing a criminal bar.  Collateral attacks may not always be an option even when the prior conviction/order is defective, but the usefulness of a collateral attack in the correct circumstances cannot be overstated. 

A prior removal or deportation order can stain an immigrant applicant’s record permanently, but in some instances, the prior order may be subject to collateral attack.  A prior deportation/removal order can result in a charge for a federal offense, if the alien is apprehended attempting to illegally re-enter the U.S. after deportation, or is discovered in the United States after illegal reentry.  In addition, the prior order can be reinstated and executed without any further immigration proceeding.  However, a constitutionally defective order may be subject to attack.   

In U.S. v. Rodriguez-Ocampo, a December 2011 decision from the Ninth Circuit, the court held that if a removal order is constitutionally defective, it cannot support a charge for the federal offense of illegal reentry, or a sentencing enhancement following a conviction for illegal entry.  In that case, the defendant, Omar Rodriguez-Ocampo, had been removed from the U.S. in 2000 pursuant to a “stipulated removal” order that was later determined to be constitutionally defective because it violated Ocampo’s due process rights.  Between 2000 and 2009, Ocampo attempted to illegally reenter the U.S. on multiple occasions to visit his wife and children, and each time, he was removed on the basis of the faulty stipulated removal order.  The Ninth Circuit found that neither the original removal pursuant to the stipulated removal order, nor any subsequent removal, could form the basis of charge of illegal reentry, or a sentencing enhancement on that basis. 

Similarly, in some instances, a prior criminal conviction that would otherwise bar immigration relief might be subject to “collateral attack” that would wipe the slate clean for immigration purposes.  In Padilla v. Kentucky (2010), the U.S. Supreme Court held that a criminal conviction is constitutionally defective if the criminal defendant is not a U.S. citizen, but his lawyer does not properly advise him regarding the immigration consequences of a guilty plea.  If an alien is convicted after a guilty plea, but was never advised by his public defender or the judge that the conviction could result in a charge of removability, the alien might be able to challenge and overturn the criminal conviction.  If successful, this conviction could not form the basis of a removal order. 

Decisions like Rodriguez-Ocampo and Padilla remind us of the value of exploring whether a prior conviction or a prior deportation order is constitutionally sound.  Although the avenues and mechanics of a collateral attack are subject to limitations, there may be hope when an alien is deprived of her constitutional rights and saddled with a conviction or a deportation/removal order that threatens to bar all immigration relief. 
 Any person seeking immigration benefits or facing removal from the United States on the basis of a criminal conviction or a prior deportation or removal order that she believes was wrongly entered is advised to consult with an experienced and knowledgeable immigration attorney.