Post-conviction relief
Post-conviction relief means going back to the criminal court that entered the conviction and asking it to vacate the conviction or change the sentence. In immigration court it is the only way to make a conviction go away 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, and a vacatur granted to spare you the immigration consequences does not.
Current as of September 2026. We re-check this page every quarter 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 explains the rule, the constitutional ground that most often satisfies it, how sentence modifications are treated, and how a vacatur is used once it exists, whether the case is still pending or a removal order has already been entered. The conviction analysis that comes before all of this is on criminal convictions and removal.
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 conviction vacated solely for immigration hardship or rehabilitation, with no defect in the original case, is still a conviction for immigration purposes, no matter what the state court's order says happened to it.
The distinction turns on the record. The immigration judge will read 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, and that is the part a criminal lawyer working alone can miss.
Sentence modifications
Several grounds of removal 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 was possible. The petty offense exception in INA 212(a)(2)(A)(ii)(II) asks whether the sentence imposed was six months or less. Some entries in the aggravated felony definition at INA 101(a)(43) turn on the sentence imposed. And under 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, clarification or reduction is given effect for immigration purposes only if it was based on a procedural or substantive defect in the original sentencing proceeding. 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.
Expungements and rehabilitative statutes: we do not publish a rule
Many states have expungement, set-aside and rehabilitative statutes that clear a record after probation is completed. Whether such an order removes a conviction for immigration purposes is governed by a body of precedent this page does not summarize, and the answer depends on the specific statute. We have not verified a rule for publication, so we do not print one. If your conviction was expunged or set aside, bring the order and the statute it was entered under and we will tell you what it does.
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 is safe when it is not, 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.
The vehicle for raising the claim is a matter of the state's criminal procedure, and it has its own deadlines and its own evidentiary demands: what the lawyer actually said, what the defendant would have done with correct advice, and whether a different outcome was realistic. Those are litigated in the criminal court, on the criminal court's rules. The immigration case cannot wait for them without a plan, which is the subject of the next section.
Two lawyers, one plan
Our immigration lawyers do not litigate in the criminal court. What we do is 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.
Using the vacatur while the 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 the vehicle is 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, 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 vehicle 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, and that equitable tolling does not apply to the number bar. The 90-day deadline itself is subject to equitable tolling in the Second Circuit under Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000), and in the Eleventh under Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc), but tolling has to be earned with a record of diligence. Reopening on the judge's own motion is reserved for exceptional situations under 8 C.F.R. 1003.23(b)(1) and Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
Two more rules shape the plan. An ordinary motion to reopen does not stay removal, under 8 C.F.R. 1003.23(b)(1)(v); a stay has to be requested, from the tribunal and, if necessary, from ICE on Form I-246. See stays of removal. And under 8 C.F.R. 1003.23(b)(1), departure from the United States after filing the motion "shall constitute a withdrawal of such motion." A person who leaves while the motion is pending has withdrawn it.
A government filing fee applies to a motion to reopen filed after a decision: $1,065 before an immigration judge and $1,030 before the Board, rising to $1,095 and $1,060 for motions filed on or after October 1, 2026, paid through the EOIR Payment Portal. Those are government filing fees, not our legal fees, and the current figure is on the EOIR fee page.
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 under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), which requires an affidavit describing the agreement with counsel, notice to the prior lawyer with an opportunity to respond, and a statement whether a bar complaint was filed. That is covered on ineffective assistance of counsel. The two claims can coexist, but they are filed on different records.
Read next: criminal convictions and removal, motions to terminate, motions to reopen, or everything after a removal order.
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. A plea entered without 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 order and the record behind it have to show the reason, and the immigration judge will look at both.
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 to avoid immigration consequences is not.
I already have a removal order. Is it too late?
Not necessarily, but the clock is tight. 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 work and the immigration filing have to be planned together from the start.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an 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 tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.