(D)  Constitutional Attack on Rule Allowing Unconstitutional Convictions to Trigger Adverse Immigration Consequences.  If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction includes as convictions even those that have been vacated as legally invalid on constitutional grounds such as ineffective assistance of counsel, the following arguments might be a starting point.

 

An interpretation that the statute defining conviction allows immigration authorities to ground adverse immigration consequences upon an unconstitutional conviction is itself unconstitutional. As the court recognized, in Pinho:[70]

 

Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agency’s interpretation, but also serves to avoid the constitutional problems that might arise under a reading which brings constitutionally protected conduct or constitutionally infirm proceedings into the category of “conviction”-cases, for example, involving an alien who was convicted of conduct subsequently deemed constitutionally protected, or whose conviction was reversed on direct appeal because of insufficient evidence, or whose conviction was vacated on collateral attack because of a plain constitutional defect. The agency does not read the statute as encompassing such situations, however, so these difficult cases have not come before us.[71]

 

In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because: “The only basis for the vacatur appearing in the order or the pleadings is Pinho’s ineffective assistance claim.”[72]

[70] Pinho v. Gonzales, 432 F.3d 193 (3d Cir. Dec. 20, 2005) (a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes; convictions vacated because of underlying defects in the criminal proceedings are 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.”).

[71] Id. at 209, n.22.

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

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