Aggravated Felonies

 

The long-standing rule is that a conviction vacated in criminal court as legally invalid on some ground has been eliminated as a source of adverse immigration consequences.[12]  Humanitarian relief not based on a ground of legal invalidity will not erase a conviction.  See § 6.12, infra.[13] Similarly, a conviction eliminated under a state rehabilitative statute without any claim of legal invalidity has not been eliminated for immigration purposes, [14] except for certain minor, first-offense controlled substances conviction is in the Ninth Circuit.  See § 6.14, infra.

 

A conviction vacated as legally invalid is viewed as illegal ab initio[15] and may not be used as a basis for deportation, removal, exclusion, statutory ineligibility to show Good Moral Character, or any other immigration purpose.[16]  Removal proceedings based on a conviction must be terminated immediately once it is vacated as legally invalid, even if the original criminal charges are still pending.[17]

 

The Attorney General has made it clear that the rule that state rehabilitative relief is ineffective to eliminate a conviction for immigration purposes does not apply when a conviction has been vacated on a ground of legal invalidity.[18]

 

In Matter of Adamiak,[19] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[20] on the ground that the trial court failed to advise the defendant of the possible immigration consequences of a guilty plea, as required by a state advisal statute, is no longer a valid conviction for immigration purposes.

 

The court clarified its previous decision in Matter of Pickering[21] as follows:

 

In our decisions addressing the effect of State court orders vacating convictions, we have distinguished between situations in which a conviction is vacated based on post-conviction events, such as rehabilitation, and those in which a conviction is vacated because of a defect in the underlying criminal proceedings. See Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003) (concluding that in light of the language and legislative purpose of the definition of a “conviction” at section 101(a)(48) of the Act, “there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships”); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (according full faith and credit to a New York court’s vacation of a conviction under a statute that was neither an expungement nor a rehabilitative statute).

 

The Ohio court’s order permitting withdrawal of the  respondent’s guilty  plea is based on a defect in the underlying proceedings, i.e., the failure of the court to advise the respondent of the possible immigration consequences of his guilty plea, as required by Ohio law. To remedy the defect in the original proceedings, the trial court ordered that the respondent be afforded a new trial on the underlying drug trafficking charge. Under these circumstances, we find that the Ohio court’s vacation of the respondent’s conviction should be recognized in immigration proceedings. In the absence of a statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full faith and credit to this State court judgment.[22]

 

The Board also made it clear that it followed the contrary rule in the Fifth Circuit only under compulsion:

 

To the extent that the DHS relies on Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002), our decisions in Matter of Pickering, supra, and Matter of Rodriguez-Ruiz, supra, make clear that we do not share the view of the United States Court of Appeals for the Fifth Circuit on this matter. The Sixth Circuit, in whose jurisdiction this proceeding arises, has not adopted the Fifth Circuit’s approach in Renteria-Gonzalez. Moreover, the Government recently stated its view in a case arising within the Fifth Circuit that “the Board’s opinion in [Matter of] Pickering constitutes a permissible construction of the statute because it comprehensively addresses the effect of a vacated conviction.” Discipio v. Ashcroft, 417 F.3d 448, 450 (5th Cir. 2005). Consequently, the court in Discipio granted the Government’s request to remand the case to the Board for termination of removal proceedings based on the vacation of the respondent’s conviction because of procedural defects in the underlying criminal proceedings. (Id. at 880.) [23]

 

The Third Circuit, as well, interprets Pickering the same way.[24]  A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but convictions vacated because of underlying defects in the criminal proceedings are effectively eliminated for immigration purposes:

 

To determine the basis for a vacatur order, the agency must first look to the order itself. If the order explains the court’s reasons for vacating the conviction, the agency’s inquiry must end there. If the order does not give a clear statement of reasons, the agency may look to the record before the court when the order was entered. No other evidence of reasons may be considered.[25]

 

The Full Faith and Credit doctrine therefore prevents the immigration courts from going behind the face of a state court order that explicitly invalidates a state conviction.  Moreover, in deportation proceedings, and in other contexts as well, the burden is on the government to establish the existence and nature of the conviction by clear and convincing evidence.  If the order vacating the conviction is ambiguous as to whether it was issued on a ground of legal invalidity, or issued as a matter of rehabilitative relief, the government cannot sustain its burden of proof. 

 

In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence.[26]  In Cruz-Garza v. Ashcroft,[27] the Tenth Circuit applied the rule of Woodby v. INS,[28] to the question whether a conviction had been eliminated, by post-conviction relief, so it no longer triggered a ground of deportation. The court held that the government must establish by clear and convincing evidence that the conviction was still in existence for immigration purposes before a valid removal order could be premised on it.  It must also prove by “clear and convincing evidence” that petitioner was subject to removal, i.e., that his conviction fell within the aggravated-felony ground of deportation and thus supported removal.[29]

 

The BIA never acknowledged this burden. On the contrary, as the quoted passage reflects, the BIA approached the case as if petitioner bore the burden of disproving that his conviction qualified him for removal. See also id. at 2 (finding petitioner “failed to establish that his conviction was vacated on the basis of a procedural or substantive defect in the underlying proceedings.”).

 

            While formal error regarding the ascription of the burden of proof can, in itself, undermine the validity of a BIA decision, see Sandoval, 240 F.3d at 581; Murphy v. INS, 54 F.3d 605, 610, 612 (9th Cir. 1995), that is not the basis of our disposition here. Rather, as explained below, we conclude in more direct fashion that the evidence of record is legally insufficient to satisfy the INS’s stringent burden of proof and, thus, that the order for removal must be reversed. See Sandoval, 240 F.3d at 583 (reversing removal order where record relating to reduction of alien’s initially qualifying conviction to a non-qualifying offense was insufficient to support removal under clear and convincing evidentiary standard); see also Cortez-Acosta v. INS, 234 F.3d 476, 480-83 (9th Cir. 2000) (reversing removal order that had been based on suggestive but inconclusive indications of alien’s removable activity (assisting illegal entry of another alien), “because the weakness of the administrative record does not satisfy the stringent [clear and convincing] evidentiary standard for deportation”).[30]

 

The court indicated the record before it was susceptible to two inferences: (a) that the felony conviction had been reduced to a misdemeanor, on the basis of an error in the original proceedings, so that it would no longer constitute a felony for immigration purposes, or (b) that the conviction had been reduced solely on the basis of considerations that arose after the conviction first came into existence, such as rehabilitation or to avoid immigration consequences, and would therefore still constitute a felony for immigration purposes.

 

The court concluded:

 

Given the vagaries of the evidentiary record and, more importantly, the plain implication of the state statute authorizing reduction of petitioner’s felony conviction to a Class B misdemeanor, we hold “that the INS did not prove by clear, unequivocal, and convincing evidence that [petitioner] was convicted of [a qualifying felony under § § 1101(A)(43) and 1227(a)(2)(A).]” Sandoval, 240 F.3d at 583. “Thus we are compelled to grant the petition for review, because the weakness of the administrative record does not satisfy the stringent evidentiary standard for deportation.” Cortez-Acosta, 234 F.3d at 483.[31]

 

Therefore, the court granted the petition for review, reversed the BIA’s decision, and vacated the order for petitioner’s removal.

 

The Seventh Circuit, as well, had applied this standard to the question of proof of a conviction to justify deportation.

 

“[I]t is incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence.” Woodby v. INS, supra, 385 U.S. at 277, 87 S.Ct. at 484; Garcia v. INS, 31 F.3d 441, 443 n.1 (7th Cir. 1994). Where, as here, the Board finds that the INS has met that burden, it is our task to consider whether the deportation order is “supported by reasonable, substantial, and probative evidence.” 8 U.S.C. § 1105a(a)(4). See Woodby, 385 U.S. at 282-83, 87 S.Ct. at 486; Rosendo-Ramirez v. INS, 32 F.3d 1085, 1087 (7th Cir. 1994).[32]

 

Because the consequences of deportation are so harsh, the government must bear the burden of showing deportability by clear, convincing and unequivocal evidence before removal will be ordered.

 

This rule may — but should not — be different in the criminal sentencing context.[33]

 

[12] See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) (post-conviction writ vacating criminal conviction entitled noncitizen to reopen deportation proceeding even after he had been deported); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (illegal to deport alien whose conviction had been vacated); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir. 1981) (deportation of noncitizen based on invalid conviction could not be considered “lawfully executed”); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930).

[13] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[14] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc), upholding Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc).

[15] “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (1999), § 4.2(a), p. 4-4, citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[16]  It is important to be aware of less obvious effects of a conviction, as well, which may also be eliminated if the conviction is vacated.  For example, a second federal conviction of telephone wagering constitutes an aggravated felony. INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J) (“an offense described in § 1084 [of Title 18] (if it is a second or subsequent offense)”).  If the first conviction is vacated as legally invalid, arguably the second offense is no longer a second conviction, and thus cannot constitute an aggravated felony.

[17] Matter of Arce-Espinosa, A92 211 181 (BIA June 30, 1998) (granting interlocutory appeal terminating deportation proceedings, despite pendency of criminal charges, where conviction had been vacated).

[18] Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (“This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. Matter of P, 9 I. & N. Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien’s guilt.”)

[19] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[20] Ohio Revised Code §   2943.031.

[21] Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003); Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Immigration Bulletin 1103 (July 1, 2003).

 

[22] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[23] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[24] Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005) (approving the Board’s distinction between “convictions vacated for rehabilitative purposes and those vacated because of underlying defects in the criminal proceedings”).

[25] Pinho v. Gonzales, 432 F.3d 193 (3d Cir. Dec. 20, 2005).

[26] 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R § 242.14(a) (1997); 8 C.F.R. § 1240.8 (as amended by 68 Fed. Reg. 9824, 9839 (Feb. 28, 2003); Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483 (1966) (requiring “clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true”); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing deportation order where smuggling “for gain” had not been established by Woodby v. INS, 385 U.S. 276 (1966) standard).

[27] Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005)(Utah conviction of attempted theft by deception, a third-degree felony, with a suspended sentence and a term of probation, was not sufficiently proved to establish a ground of deportation, because the record of post-conviction proceedings did not establish with sufficient clarity and certainty that the conviction was still in existence).

[28] Woodby v. INS, 385 U.S. 276 (1966).

[29] 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50 (2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003).

[30] Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005).

[31] Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005) (footnote omitted).

[32] Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction that noncitizen had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief, since it was nothing more than clerk of court’s representation on what underlying court records reveal about nature of conviction, and there was no court record which confirmed that noncitizen had in fact used handgun in connection with armed robbery to which he pleaded guilty).

[33] United States v. Garcia-Lopez, 375 F.3d 586 (7th Cir. July 12, 2004) (prior conviction, vacated on technical grounds for failure of court to give required warnings of possible immigration consequences, still requires 16-level enhancement upon illegal re-entry sentence since conviction was still in existence at time of deportation, even though conviction was vacated prior to illegal re-entry).