(B)  Second, the court order vacating the conviction must hold that the conviction was legally invalid, by reason of a legal defect that was in existence at the time the conviction first arose.  “In accord with the federal court opinions applying the definition of a conviction at section 101(a)(48)(A) of the Act, we find that 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.”[66]  Therefore, so long as the legal defect was in existence at the time the plea or verdict was first entered, the vacatur is sufficient under Pickering to eliminate the immigration consequences of the conviction.

[66] Id. at 624.

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