In Matter of Pickering,[62] the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[63]  This decision expressly states it does not change the pre-existing rule that a vacatur which is based on a ground of legal invalidity existing at the time the conviction first arose is effective in eliminating the immigration consequences of a criminal conviction.[64]

 

To be effective in eliminating the immigration consequences of a conviction, post-conviction counsel must obtain a court order in the original criminal case vacating or setting aside the conviction that meets a number of specific requirements.

[62] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

[63] Id. at 625.

[64] For an excellent analysis of Pickering, see Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103 (July 1, 2003).  For a description of effective orders to vacate convictions, see N. Tooby, Effective Post-Conviction Relief: Eliminating Criminal Convictions for Immigration Purposes, in II AILA Handbook on Immigration and Nationality Law – Advanced Practice (2001-2002); N. Tooby, Criminal Defense of Immigrants § § 10.2-10.7 (3d ed. 2003); N. Tooby, Aggravated Felonies § § 7.2, et seq. (2003).  See also Immigration Law and Crimes § § 4.2, 4.20 (2003).

First Circuit

POST CON RELIEF - EFFECTIVE ORDER
Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir.2000) (applying Pickering analysis to vacated convictions, although decision pre-dates Pickering; subsequent dismissal of charges, based solely on rehabilitative goals does not vitiate that original admission).

Sixth Circuit

POST CON RELIEF - EFFECTIVE ORDER -THE DEFENDANT'S MOTIVE IN SEEKING TO VACATE IS IRRELEVANT
Pickering v. Gonzales, - 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) ("the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction.").

JUDICIAL REVIEW - PETITION FOR REVIEW - DISPOSITION - WHERE RECORD CONTAINED INSUFFICIENT EVIDENCE TO ESTABLISH DEPORTABILITY, REMEDY WAS REVERSAL WITHOUT REMAND FOR CONSIDERATION OF ADDITIONAL EVIDENCE
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003). (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, removal proceedings ordered terminated without remand for consideration of additional evidence).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003) (where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, deportation proceedings ordered terminated without remand for consideration of additional evidence).

Other