(C)  Third, the court order and supporting documents must not establish that the vacatur was “entered solely for immigration purposes.”[67]  Read in context, this does not require the immigration or federal courts to read the mind, and determine the subjective motivations, either of the defendant seeking post-conviction relief, or the criminal court judge granting the relief.  It was simply a shorthand for repeating the BIA’s conclusion that the record must not indicate that the only reason advanced by the defendant for vacating the conviction was the equitable consideration of the adverse immigration consequences arising from a legally valid conviction at a point in time after the conviction itself occurred.

 

Because of the possibility that the government or the immigration courts may misconstrue Pickering, however, post-conviction counsel would be wise to de-emphasize the immigration-related facts of the case and their relation to the ground of invalidity.  If possible, post-conviction counsel should vacate the conviction on a ground of legal invalidity that is completely unrelated to the immigration consequences of the conviction.  If the unrelated ground alone is insufficiently strong as a basis to vacate the conviction, the petition can allege both (1) a ground of invalidity unrelated to the immigration consequences, plus (2) a ground that does bear some relation to the immigration consequences.  The court should be urged to grant relief on both grounds.  If the order granting relief states simply that the motion is granted, it would be construed as being granted on both grounds, and it could not truly be said that the conviction was vacated “solely” on an immigration-related ground.  It would therefore be effective under Pickering to eliminate the immigration consequences of the conviction.

 

In many cases, the conviction will damage the defendant in his or her occupation, causing loss of employment or loss of a license to practice a profession such as a real estate broker’s license, and the like.  Many occupations have a “moral turpitude clause,” such that a conviction of a crime of moral turpitude — defined in the same way as the moral turpitude ground of deportation — will cause loss of job or license.  Counsel can advance this reason, instead of or in addition to the immigration consequences, as the reason for which the defendant is seeking to vacate the conviction.  Then, the immigration authorities could not argue that the vacatur falls within Pickering since the defendant advanced an alternative or additional non-immigration related reason for wishing to vacate the conviction.

 

At a minimum, it is true that any conviction will trigger both (a) immigration consequences, and (b) non-immigration-related damage, such as the loss of the right to vote, liability to impeachment on account of the conviction if called to testify as a witness in a future proceeding of any kind, stigma, damage to reputation, and liability for an enhanced sentence in the event of future criminal convictions, as well as the forms of employment damage mentioned above.  The defendant certainly wishes to remove all of these different forms of collateral damage triggered by the legally invalid conviction being challenged.  The declaration of the defendant in support of the post-conviction motion or petition should enumerate all of these different non-immigration forms of damage, instead of or in addition to the immigration-related reasons.  At least counsel should ensure that the court order, and if possible the reporter’s transcript of the hearing on the motion to vacate, do not mention the immigration consequences as the sole reason for granting the relief.  The immigration consequences may be mentioned as a motive for seeking to invalidate the conviction, so long as it is clear that the court order vacating the conviction is based on a ground of legal invalidity, independent of the immigration consequences, that was in existence at the time the plea or verdict arose, and to avoid other damage as well.

 

Immigration counsel will be faced with court orders vacating convictions that are based on grounds somewhat related to the immigration consequences of the conviction, either because the orders were handed down before Pickering was decided or because the only ground of legal invalidity upon which the vacatur could be obtained bears some relationship to the immigration consequences of the conviction.

 

Pickering itself repeatedly states that an order is ineffective only if it was “entered solely for immigration purposes.”[68]  Thus, if the motion or petition and the court order vacating the conviction recite any other reason or ground for vacating the conviction, aside from the immigration consequences, then the order must be respected, even if Pickering is mistakenly construed to require non-immigration-related grounds.  In Pickering, neither the court order, nor the request for post-conviction relief, nor the supporting affidavit “identifies a basis to question the integrity of the underlying criminal proceeding or conviction.”[69]  The record of the state court post-conviction proceedings can therefore contain the powerful equitable arguments related to the immigration consequences now confronting the client, without removing the effect of the vacatur in eliminating the immigration consequences of the order so long as the order is granted on a ground other than the sole humanitarian desire to eliminate the adverse immigration consequences.

[67] Id. at 625.

[68] Id. at 625 (emphasis supplied).

[69] Id. at 625.

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