Aggravated Felonies

 

The principle that a criminal court order vacating a conviction as legally invalid eliminates the immigration consequences of the conviction has not been altered by the IIRAIRA new definition of conviction.[34]  For example, the Ninth Circuit has recently reaffirmed this principle:

 

The INS concedes, and we agree, that Congress did not intend that a conviction subsequently overturned on the merits (either because of a finding of insufficient evidence or because of a basic procedural inadequacy, such as a violation of the right to counsel), could serve as the basis for deportation.  Thus, the INS acknowledges that a court’s subsequent treatment of a conviction, after it has been entered, may in some cases serve to prohibit its use for immigration purposes.[35]

 

The court continued:

 

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant’s guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[36]

 

Moreover, in a thoughtful analysis of the context and content of the new definition of conviction, the Ninth Circuit concluded that the purpose of the new definition was to alter the nature of the disposition that is considered a conviction in the first place, rather than to change any part of the law affecting the circumstances under which a conviction would be considered to have been eliminated by some later judicial action.[37]

 

Even if there is no explicit order vacating a conviction, the immigration courts must sometimes infer the deportable conviction has been vacated, and a new non-deportable conviction substituted. This is the case even if the criminal court grants a new sentence that could only be imposed for a non-deportable conviction after a motion or petition to vacate a conviction has been filed on a ground of legal invalidity.  In Sandoval v. INS,[38] the court granted a petition for review, and remanded the case to the BIA for entry of an order terminating deportation proceedings that had been instituted on the basis of an initial felony conviction of possession of more than 30 grams of marijuana.  The defendant had filed a post-conviction motion[39] in the criminal court claiming that the plea was involuntary because it had been based on defense counsel’s mistaken advice not to worry about any immigration consequences.[40]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, which is only possible if the defendant is a first-time offender convicted of possession of 30 grams or less of marijuana.

 

In holding that the criminal court had implicitly vacated the original judgment on a ground of legal invalidity, the circuit court distinguished Matter of Roldan-Santoyo.[41]  The court held that the state court judge had not used a state rehabilitative statute, but rather used a statute authorizing him to vacate a conviction or sentence on grounds that the conviction was unconstitutional.

           

Therefore, the new definition of conviction does not alter the long-standing rule that a criminal court order vacating a conviction on some ground of legal invalidity effectively eliminates the conviction for all immigration purposes.  Since the result of issuance of the order is to vacate the conviction completely, there is no conviction to be held against the defendant for immigration purposes.[42]  The INS has conceded as much in other cases as well.[43]  

 

Unfortunately, the Fifth Circuit has taken the contrary view, refusing to halt removal proceedings where a federal conviction was vacated under the All Writs Act. [44]  In Renteria-Gonzalez v. INS,[45] the Fifth Circuit found in a conclusory fashion that “vacated” convictions remain valid for immigration purposes.  The court’s predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[46] 

 

In a special concurrence, Judge Benavides aptly pointed out that the majority opinion fails to recognize the distinction between convictions vacated on legal grounds as opposed to those erased under state rehabilitative statutes:

 

The majority states that five circuits, including this Court, have concluded that a “vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A).” Maj. op. at 835.  Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative provisions or expunged convictions remain valid for the purposes of § 1101(a)(48)(a), I would emphasize that none of the convictions in the five cases cited by the majority was vacated based on the merits of the underlying criminal proceeding, i.e., a violation of a statutory or constitutional right with respect to the criminal conviction.  Indeed, as set forth below, two of those sister circuit opinions contain language recognizing a distinction between the two categories of vacaturs: vacaturs on the merits versus rehabilitative vacaturs.[47]

 

The concurrence further explains that because Renteria’s conviction had not been vacated on grounds of legal invalidity, the majority opinion cannot be understood as altering the long-standing rule:

 

The common thread running through the above cases is that convictions set aside or vacated based on events subsequent to the conviction – not because of a defect in the conviction itself – constitute convictions within the meaning of § 1101(a)(48)(A). Likewise, in the instant case, Renteria’s conviction was not vacated because there was a valid challenge to the underlying criminal proceedings. Thus, although I agree that the above cases indicate that Renteria’s vacated conviction qualifies as a conviction under § 1101(a)(48)(A), I would tailor the analysis more narrowly to the facts at issue. Specifically, I would distinguish the instant vacatur from cases involving convictions vacated because of a defect in the criminal proceedings. . . . 

 

            Applying the majority’s holding to vacaturs based on the merits would result in what I believe to be an absurd result and certainly not in keeping with the notion of American judicial traditions. For instance, if the courts determine there was insufficient evidence, an involuntary guilty plea or a violation of other constitutional or statutory rights, we customarily vacate such a conviction.  It would seem to be an absurd result to interpret the provision to encompass convictions that state or federal courts have deemed deficient on the merits. In my view, such a judicial determination operates to negate a conviction with respect to the merits.  In summary, I do not believe the majority opinion should be understood to indicate that a conviction that has been vacated or reversed based on a defect in the underlying criminal proceeding constitutes a conviction under INA § 1101(a)(48)(A).[48]

 

Although the specifics of the order vacating the conviction are not explained in either opinion, the concurring judge views the trial-court order as vacating the conviction on humanitarian grounds, rather than on grounds that the conviction was legally invalid.  As a result, he finds that any discussion of the effectiveness of a conviction vacated on the merits is “entirely dicta in that the case at bar did not involve such a vacatur.”[49] 

 

Thus, although the immigration authorities may continue pressing the argument that a vacated conviction remains valid under the IIRAIRA definition of conviction and citing this decision in support, it should be pointed out that the Fifth Circuit’s holding in this regard is dictum and should be disregarded.

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.) [50]

 

            The Fifth Circuit should grant rehearing, and vacate Renteria, to eliminate its dictum as out of step with the rest of the nation.  The following argument could be made:

 

Congress is not presumed to change well-established legal precedent by silence.[51]  Under Chevron, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”[52]  As the agency has addressed the effect of a non-rehabilitative vacation, as well as other exceptions to a conviction under 8 U.S.C.§ 1101(a)(48)(A),[53] the panel ought to have considered these rulings to determine whether they present a permissible construction of the statute.[54]

 

In particular, although the Board of Immigration Appeals ruled in Matter of Roldan[55] that no effect is to be given to an action which purports to expunge a conviction by operation of a state rehabilitative statute, the Board left room for an exception.  The Board’s decision was “limited to those circumstances where an alien has been the beneficiary of a state rehabilitative statute,” and does not extend to cases in which a conviction was “vacated by a state court on direct appeal, wherein the court determines that vacation of the conviction is warranted on the merits, or on grounds relating to a violation of a fundamental statutory or constitutional right in the underlying criminal proceedings.”[56]

 

This construction of 8 U.S.C. § 1101(a)(48)(A) is consistent with the legislative history and leaves intact the agency’s longstanding distinction between convictions vacated under non-rehabilitative statutes and those that were only technically erased, withheld, or deferred.[57]  In Sirhan, the Board ruled that “[t]here is . . . no authority holding that a conviction exists where there is no finding by a criminal court that a person is guilty of a crime. On the contrary, when a court acts within its jurisdiction and vacates an original judgment of conviction, its action must be respected.”[58]

 

Although the Renteria panel was correct in noting that the Board has not addressed the precise question of whether a vacated federal conviction remains a conviction for immigration purposes,[59] the Board’s reasoning in both Roldan and Rodriguez-Ruiz reflects the Board’s view that the statutory definition of conviction accommodates exceptions.[60]  Furthermore, no federal court has ruled that a conviction vacated as legally invalid remains a conviction under 8 U.S.C. § 1101(a)(48)(A).[61]

 

[34] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[35] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000) (footnote 30 omitted).

[36] Id. at 747 n.30.

[37] “Instead, the purpose of the amendment [i.e., the new statutory definition of ‘conviction’] appears to have been to establish the time at which a particular type of proceeding, specifically, deferred adjudication, results in a conviction for immigration purposes -- not to alter the long-standing rule that a conviction entered but subsequently vacated or set aside cannot serve as the basis for a deportation order.”  Lujan-Armendariz v. INS, 222 F.3d 728, 745 (9th Cir. 2000).

[38]Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[39] Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, para. 122 ff., now codified as 720 ILCS § 5/122-1 (West Supp. 2000).

[40] “It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.”  People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985).  Reliance on counsel’s mistaken immigration advice can render the plea involuntary.  See id.; People v. Luna, 570 N.E.2d 404, 406-07 (Ill.App.Ct. 1991)(holding that post-conviction petition, which alleged that counsel failed to advise noncitizen that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

[41] Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[42] Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); see also Matter of O., 7 I. & N. Dec. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. Dec. 677, 680 (BIA 1979).

[43] In Cruz-Sanchez v. INS, 438 F.2d 1087 (9th Cir. 1971), the INS pointed out that “if petitioner is successful in challenging his conviction in the court which rendered the judgment, he may move to reopen the deportation proceeding.”  Id. at 1089.  Petitioner did so, and the Ninth Circuit, on rehearing, recognized that the criminal court “has now vacated the sentence . . . upon which the Order of Deportation sought to be reviewed was based.”  Ibid.  The court therefore remanded the matter to the INS, with directions to give the matter further consideration in light of the vacation of the sentence.  Ibid.

[44] 28 U.S.C. § 1651.

[45] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).

[46] Id. at 833-34 (“Although it may seem counterintuitive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws.”)

[47] Id. at 842 (Benavides, J., specially concurring) (citing Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n. 8 (4th Cir. 2001) (foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1312-17 (11th Cir. 2001); Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000)).

[48] Renteria, 322 F.3d at 823 (Benavides, J., specially concurring).

[49] Id. at 843 n.4.  

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

[51] American Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 613-14 (1991) (“If this amendment had been intended to place the importation limitation on the scope of the Board’s rulemaking powers . . . we would expect to find some expression of that intent in the legislative history”).

[52] Id. at 843 (emphasis added).

[53] Matter of Rodriguez-Ruiz, supra, at 1379; see also Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000).

[54] Chevron, supra, at 843.

[55] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999).

[56] Id. at 523.

[57] See Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970) (holding that because a noncitizen’s vacated conviction no longer existed, it could not form a basis for deportability under 8 U.S.C. § 1251(a)(11)).

[58] Id. at 600.  See also Matter of Rodriguez-Ruiz, supra, at 1379; Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (holding that a conviction dismissed nolle prosequi was not a conviction for immigration purposes).

[59] Renteria, supra, at 813, n.8.  The Board also left open the question of “the effect to be given . . . to first offender treatment accorded to an alien under 18 U.S.C. § 3607 by a federal court,” Matter of Roldan, supra, at 524, n.9.  See also Matter of Salazar, 23 I. & N. Dec. 223, 231 (BIA 2002).

[60] See also Lujan-Armendariz v. INS, supra, at 746-47.

[61] This argument was taken from the amicus curiae petition for rehearing filed in Renteria.