Post-conviction relief
Post-conviction relief means going back to the criminal court that took the plea and asking it to vacate the conviction or change the sentence. It is the only way to make a conviction stop existing for immigration purposes rather than argue around it. Whether the result counts depends on why the criminal court granted it. A vacatur for a defect in the case removes the conviction. A vacatur granted to spare you the immigration consequences does not, no matter what the order says happened to the record.
Current as of October 2026. We re-check this page regularly and after any rule change.
Immigration judges do not vacate convictions. Criminal courts do. What the immigration judge decides is whether to give the criminal court's order effect, and the rule for that is settled: the reason for the vacatur controls. This page is about the conviction side of that work. Which vacaturs count, which sentence changes count, the constitutional ground that most often satisfies the rule, and what the order has to say before it is filed in the immigration case. The court side, the motions that carry the order in front of the judge, lives on immigrationtrial.com, and the cards at the bottom of this page go there. Everything on this page assumes you have already run the conviction through the after a plea questions and know which conviction actually matters.
Which vacaturs count
In Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the Board drew the line that still governs. A conviction vacated because of a substantive or procedural defect in the underlying criminal proceeding is no longer a conviction under INA 101(a)(48)(A). A conviction vacated solely for immigration hardship or rehabilitation, with no defect in the original case, is still a conviction for immigration purposes.
The distinction turns on the record. The immigration judge reads the motion that was filed in the criminal court, the ground it asserted, and the order the court entered. An order that recites a defect (an involuntary plea, a constitutional violation, a defect in the charging instrument) supports the argument that the conviction is gone. An order that recites nothing, or that was entered on a motion asking the court to help the defendant avoid deportation, does not. The vacatur has to be built for the immigration case from the first page of the motion. That is the part a criminal lawyer working alone can miss, and it is the subject of the vacating a plea page.
The same logic runs the other way for records that were cleared without any defect. Under Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999), a state expungement, set-aside or dismissal granted because you completed probation or stayed out of trouble does not eliminate the conviction for immigration purposes. A sealed or expunged record is still a conviction. The expungement and sealing page covers what that means for disclosure.
Sentence modifications
Several rules turn on the sentence rather than the offense. The deportability ground for a single crime involving moral turpitude in INA 237(a)(2)(A)(i) asks whether a sentence of one year or longer could have been imposed. The petty offense exception in INA 212(a)(2)(A)(ii)(II) asks whether the sentence imposed was six months or less. The aggravated felony entries at INA 101(a)(43)(F), (G), (P), (R) and (S) turn on a term of imprisonment of at least one year. And under INA 101(a)(48)(B) a suspended sentence counts in full.
The Attorney General applied the Pickering rule to sentences in Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G. 2019). A sentence modification is given effect for immigration purposes only if it was based on a procedural or substantive defect in the original sentencing. A reduction of a single day granted for the purpose of avoiding an immigration consequence is not given effect, however willing the state court may be to enter it. The sentence modification page goes through which rules a shorter sentence can change and how the order has to be presented.
The Padilla ground
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a noncitizen defendant of the immigration consequences of a guilty plea. A lawyer who says nothing, or who says the plea will not affect your status when it will, has fallen below the constitutional standard. A plea entered on that advice can be challenged in the criminal court that took it, and a vacatur on that ground is a vacatur for a constitutional defect in the proceeding, which is exactly what Pickering requires.
Two limits come with the claim. Under Chaidez v. United States, 568 U.S. 342 (2013), Padilla does not apply to convictions that became final before March 31, 2010. And the claim needs proof of prejudice, which under Lee v. United States, 582 U.S. 357 (2017), can be shown where the defendant would have rejected the plea and gone to trial even with little chance of acquittal, because deportation was the thing that mattered. What the lawyer actually said, what you would have done with correct advice, and whether a different outcome was realistic are litigated in the criminal court, on the criminal court's rules and deadlines.
Two lawyers, one plan
The immigration lawyer's job in a post-conviction case is to decide what the criminal court's order has to accomplish. That means identifying which conviction actually matters under the categorical approach, whether the problem is the offense or the sentence, what disposition would take the case outside the ground of removal, and what the vacatur or modification order needs to recite so that Pickering and Thomas & Thompson are satisfied. Criminal counsel then litigates the motion. Where the firm's criminal defense practice can take the matter, it does; where it cannot, we coordinate with the lawyer who handled the case or with local counsel. Either way the two cases run on one calendar, because the immigration case has its own clock and the judge is not required to wait.
The safer sequence
Have the conviction analyzed before the criminal motion is drafted, not after it is granted. A motion that asks for the wrong thing, or an order that omits the reason, can cost the one chance the criminal court's rules allow. The analysis is the same one the plea tool starts: which category, what sentence, what date, what status.
Using the vacatur while the immigration case is pending
If the immigration case is still before the judge, a qualifying vacatur goes to the charge. For a person who was admitted, DHS must prove deportability by clear and convincing evidence under INA 240(c)(3)(A) and 8 C.F.R. 1240.8(a). Once the conviction that supported the charge no longer exists, the charge fails, and you raise that with a motion to terminate, with the vacatur order and the criminal court record attached.
If the conviction was not the basis of the charge but a bar to relief, the vacatur goes to eligibility instead. Under Pereida v. Wilkinson, 592 U.S. 224 (2021), the applicant bears the burden of showing a conviction is not disqualifying and loses if the record is inconclusive, so the order and the record showing why it was entered have to be in the file before the judge rules on the application.
Timing is the practical problem. The judge is not required to hold the case open while a criminal motion is litigated. A continuance requires good cause under 8 C.F.R. 1003.29, and under Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), the primary factors are the likelihood the collateral relief will be granted and whether it would materially affect the outcome. A well-supported Padilla motion that would eliminate the only charge is a strong candidate. A speculative motion filed the week before the individual hearing is not.
Using the vacatur after a removal order
If the order is already final, the filing is a motion to reopen based on the vacatur, filed with whichever tribunal last had the case, the immigration judge or the Board. The rules that govern it are strict.
90 days, and one motion
Under INA 240(c)(7) and 8 C.F.R. 1003.23(b)(4)(i), a motion to reopen is due within 90 days of the final administrative order, and you get one. The Board held in Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), that the one motion is counted across both the immigration judge and the Board. The vacatur has to exist before the motion is filed. A criminal motion that will take a year to litigate does not fit inside 90 days, which is why the criminal work starts the day the removal order is entered, or earlier.
A motion to reopen filed on or after October 1, 2026 carries a government filing fee of $1,095 before an immigration judge and $1,060 before the Board. Those are government filing fees paid to the Department of Justice, not our legal fees, and they are adjusted each fiscal year; the current figures are in the EOIR fee rule. Whether a motion to reopen stays your removal, and what happens if you leave the country while it is pending, are covered on the immigrationtrial.com motion-to-reopen page linked below.
If the immigration lawyer was the problem
Padilla is about criminal defense counsel. If the error was made by the lawyer in the immigration case, the claim is different: reopening for ineffective assistance of counsel in the removal proceeding itself, which is filed in the immigration case, not the criminal one, and which has its own affidavit and notice requirements under Board precedent. Those requirements belong to the court side of the case and are covered on immigrationtrial.com. The two claims can coexist, but they are built on different records.
Where the court side lives
This site is about the conviction. The motions that carry a vacatur in front of the immigration judge are on our removal defense site.
Post-conviction relief in removal proceedings: motions to terminate, continuances under L-A-B-R-, stays, and what happens if the immigration lawyer made the error.
Post-conviction relief in removal proceedings →
immigrationtrial.comMotions to reopen after a final order: the 90-day rule, the one-motion rule, tolling, stays of removal, and the departure rule.
Motions to reopen →
Common questions
My criminal lawyer never told me the plea could get me deported. Does that help?
It may. Under Padilla v. Kentucky, 559 U.S. 356 (2010), a defense lawyer must advise a noncitizen client of the immigration consequences of a plea, and silence or misadvice is deficient performance. A plea entered on that advice can be attacked in the criminal court that took it. If the court vacates the conviction because the advice was constitutionally deficient, that is a vacatur for a defect in the proceeding, and under Matter of Pickering the conviction no longer exists for immigration purposes.
If a court vacates my conviction, is it automatically gone from my immigration case?
No. Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), a vacatur counts only if it was based on a substantive or procedural defect in the criminal proceeding. A vacatur granted solely to avoid immigration hardship, or because you have been rehabilitated, leaves the conviction in place for immigration purposes. The motion, the order and the record behind them have to show the reason, and the immigration judge will read all three.
Can a shorter sentence fix the problem instead?
Sometimes. Several grounds turn on the sentence imposed, and under Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019), a sentence modification is given effect for immigration purposes only if it was based on a procedural or substantive defect in the original sentencing. A reduction granted because a shorter sentence would help with immigration is not given effect.
I already have a removal order. Is it too late?
Not necessarily, but the clock is short. A motion to reopen is generally due within 90 days of the final order, and you get one, counted across the immigration judge and the Board. The vacatur has to exist before the motion is filed, so the criminal motion and the immigration filing have to be planned together from the first day.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.