AG Barr Decision Renders Post-Conviction Relief Nearly Irrelevant for Immigration Purposes

Non-citizens hoping to reduce the immigration consequences of a crime with post-conviction relief face tough decision by AG Barr.

By , J.D.

** LEGAL UPDATE **

Non-citizens of the U.S. who have committed any sort of crime often face a double whammy: They must serve prison time or face fines or other penalties under the criminal law (state or federal); and they might face immigration consequences, most likely deportation (removal).

That's why many people in this situation look into the possibility of applying for post-conviction relief in their state, such as a reduction of sentence or an order of expungement (which basically wipes the crime off their record). The idea is that either of these could reduce the significance of the crime such that it no longer matches the definition of a crime that makes an immigrant inadmissible to or deportable from the United States.

Unfortunately, that possibility just got a lot more remote. In late 2019, Attorney General Barr decided on behalf of the B.I.A. (in Matter of Thomas and Thompson) that a state-court order that modifies, clarifies, or alters the term of imprisonment or sentence associated with a conviction will have no legal effect unless it was based on a procedural or substantive defect in the underlying criminal proceeding.

In other words, if the state-court order is based on reasons unrelated to the merits, such as rehabilitation or immigration hardship, U.S. immigration law will disregard it. You would basically have to show that some sort of mistake or miscarriage of justice took place. And for that, you will definitely need the help of an attorney.

Effective Date: October 25, 2019