This week, an applicant came to our office, as usual, but she brought with her something that is somewhat unusual for us to see. This applicant had three convictions on her record, one of them quite serious. One of the convictions had also put her in deportation proceedings. Here is where things got interesting: she had successfully had two of her convictions vacated. It was not something that I have come across since I started at Project Citizenship so I wanted to do a little more research into how a vacated conviction may or may not impact a naturalization application, and in turn, share that information with all of you.


What is a vacated conviction?

When a conviction is vacated, it means that the court voids the decision or crime. The court determines you have met certain conditions and the conviction is removed from your criminal history record.


How do you vacate a conviction?

There are different ways someone may make a motion to vacate a conviction. For example, if the person gave a confession that was forced or coerced, he/she may be able to make a motion to vacate the conviction. Also, if a person can prove that he/she did not have effective assistance of counsel during his/her trial, he/she would have grounds to make a motion to vacate the conviction.

This particular client had made a motion to vacate two convictions based on the ground that she did not receive certain warnings during her trial. These warnings are required to be given to a person being charged with a crime to let them know if they are not a U.S. citizen, anything they admit to or agree to may have consequences for immigration purposes. This warning can be found in the Massachusetts laws in chapter 278, section 29D.

· Practice Tip: On each docket sheet, under the name of the offense, you will see multiple check boxes under “Disposition Method.” You will see that the second box says “Admission to Sufficient Facts accepted after colloquy and 278 §29D warning.” This warning is that which refers to potential immigration consequences.

The text of the warning is: “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.”


What if someone does not receive the warning?

If the court does not provide this warning to the person being charged and the person is deported, excluded from the U.S. or has his/her naturalization application denied, he/she can make a motion to vacate the conviction.

· Practice Tip: A person can make a motion to vacate a judgment even after he/she has been deported!


What if there is no record whether or not the warning was given?

If there is no record created at the time of the conviction that a warning was given, including on the docket sheet itself, the person who is asking to vacate the judgment is presumed not to have received the warning. This means that if the person has no honest recollection of receiving the warning and there is no record or evidence that it was given, the court should act as though the warning was not given.


If the warning was not given or presumed not to have been given, does the person have to show anything else?

Yes. The person requesting that his/her conviction be vacated must also show that his/her conviction may have or has had one of the consequences. This cannot just be a hypothetical risk – just because a person could be deported is not enough. In our case, the client had been placed into deportation proceedings due to one of her convictions. Thus, one of the consequences given in the warning had actually happened to her. The more difficult part to show is that the consequence (deportation, exclusion, denial of naturalization) was caused by the conviction. If a person can show these things, he/she has a good possibility of having the motion to vacate approved.


If a person has his/her convictions vacated, how does that affect the naturalization application?

A vacated conviction will not be considered a conviction for immigration so long as the conviction was vacated for a legal defect. The conviction could not have been vacated only because of an immigration hardship. In our case, the client successfully vacated her conviction because there was a legal defect: she had not been given the proper warning about potential immigration consequences.

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