Motion to Vacate a Conviction

Where no waiver is available, and it is clear that no immigration remedy will solve a criminal conviction bar to adjustment of status, often the only means available to a noncitizen is the motion to challenge the conviction before the criminal court. Our office specializes in both criminal and immigration matters, and has attorneys with substantial experience in both areas.

The immigration law is clear that a conviction that has been vacated (removed) by the criminal court on the merits of the charges, is not a conviction for immigration purposes. However, if the criminal court vacates the conviction solely to remedy an immigration hardship rather than on the basis of a problem with the original criminal case, the vacating of the conviction will not resolve the immigration consequence of the conviction.

Under Illinois law, both sections 1301 and 1401 of the Code of Civil Procedure provide vehicles for returning to the criminal court to challenge the validity of a conviction. Often, the failure of the criminal defense attorney to properly advise the defendant of the immigration consequence of the conviction before accepting a plea of guilty, will serve as a means to vacate the plea. An extremely important U.S. Supreme Court case, Padilla v. Kentucky, held that the failure of council to do this is a violation of the constitutionally guaranteed right to council under the Sixth Amendment to the U.S. Constitution. You can read more about this case at:

Padilla v. Kentucky

Often a motion to reopen a deportation subsequent to vacating a conviction will serve to preserve one’s residency or eligibility to adjust.