Third Circuit

POST CON RELIEF " DHS ALLOWED TO FILE NEW CHARGES OF REMOVAL AFTER VACATUR OF CONVICTION
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

Fifth Circuit

POST CONVICTION RELIEF - EFFECTIVE ORDER - DHS CONCEDES NONCITIZEN IS NOT REMOVABLE BASED ON VACATED CONTROLLED SUBSTANCES CONVICTION EVEN IN FIFTH CIRCUIT
Gaona-Romero v. Gonzales, ___ F.3d ___, 2007 WL 2372357 (5th Cir. Aug. 21, 2007) (per curiam) (since government concedes that noncitizen is no longer removable, because his conviction was vacated as legally invalid, the panel affirmance of the removal order is vacated, the case is remanded to the BIA to permit the government to withdraw its charge of removability pursuant to in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), and the petition for rehearing is denied as moot). Note: This decision may be used to show that the Government has agreed to follow Pickering, rather than Renteria, even within the Fifth Circuit.

POST CONVICTION RELIEF - VACATED CONVICTION IS ELIMINATED FOR IMMIGRATION PURPOSES
Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Feb. 27, 2003) (stating in dicta that federal and state convictions remain valid for immigration purposes even if vacated on legal grounds).
Argument Against Renteria:      Congress is not presumed to change well-established legal precedent by silence. American Hosp. Assn 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 Boards rulemaking powers . . . we would expect to find some expression of that intent in the legislative history"). 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." Id. at 843 (emphasis added). 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),[FN1] [FN1] Matter of Rodriguez-Ruiz, supra, at 1379; see also Matter of Devison, 22 I&N 1362 (BIA 2000). the panel ought to have considered these rulings to determine whether they present a permissible construction of the statute. Chevron, supra, at 843.      In particular, although the Board of Immigration Appeals ruled in Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), that no effect is to be given to an action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute, the Board left room for an exception. The Boards 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." Id. at 523.      This construction of 8 U.S.C.1101(a)(48)(A) is consistent with the legislative history and leaves intact the agencys longstanding distinction between convictions vacated under non-rehabilitative statutes and those that were technically erased, withheld, or deferred. See Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970) (holding that because an aliens vacated conviction no longer existed, it could not form a basis for deportability under 8 U.S.C. 1251(a)(11)). 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." Id. at 600 (emphasis added). See also Matter of Rodriguez-Ruiz, supra. at 1379; Matter of OSullivan, 10 I&N Dec. 320 (BIA 1963) (holding that a conviction dismissed nolle prosequi was not a conviction for immigration purposes).      Although the panel is correct in noting that the Board has not addressed the precise question of whether a vacated federal conviction remains a conviction for immigration purposes,[FN2] [FN2] 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). Renteria, supra, at *17, n. 8, the Boards reasoning in both Roldan and Rodriguez-Ruiz reflect the Boards view that the statutory definition of conviction accommodates exceptions. See also Lujan-Armendariz v. INS, supra, at 746-47. Furthermore, no federal court has ruled that a conviction vacated under a non-rehabilitative statute remains a conviction under 8 U.S.C. 1101(a)(48)(A). THIS IS FROM RENTERIA AMICUS PETITION FOR REHEARING

Ninth Circuit

POST CON - FEDERAL - SENTENCE
United States v. Marks, ___ F.3d ___ (9th Cir. Aug. 23, 2004) (conviction counts as predicate conviction in federal prosecution for violation of 18 U.S.C. 922(g)(1), although conviction found was unconstitutional based on ineffective assistance of counsel).
http://caselaw.lp.findlaw.com/data2/circs/9th/0330464p.pdf

Tenth Circuit

POST CONVICTION RELIEF - EFFECTIVE ORDER
Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005) (where Government bears the burden in immigration proceedings, the Government must prove by clear, convincing, and unequivocal evidence that a vacated criminal conviction remains a conviction for immigration purposes).      In deportation proceedings, the government must prove a noncitizens deportability by clear, convincing and unequivocal evidence. 8 U.S.C. 1229a(c)(3)(A); 8 C.F.R 242.14(a) (1997); 8 C.F.R. 1240.8 (as amended by 68 Fed. Reg. 9824, 9839 (Feb. 28, 2003); Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring "clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true"); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing deportation order where smuggling "for gain" had not been established by Woodby v. INS, 385 U.S. 276 (1966) standard). In Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005)(Utah conviction of attempted theft by deception, a third-degree felony, with a suspended sentence and a term of probation, was not sufficiently proved to establish a ground of deportation, because the record of post-conviction proceedings did not establish with sufficient clarity and certainty that the conviction was still in existence), the Tenth Circuit applied the rule of Woodby v. INS, 385 U.S. 276 (1966) to the question whether a conviction had been eliminated, by post-conviction relief, so it no longer triggered a ground of deportation. The court held that the government must establish by clear and convincing evidence that the conviction was still in existence for immigration purposes before a valid removal order could be premised on it.      The INS had to prove by "clear and convincing evidence" that petitioner was subject to removal, i.e., that his conviction fell within the aggravated-felony ground of deportation and thus supported removal under 8 U.S.C. 1227(a)(2)(A)(iii). 8 U.S.C. 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50 (2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003). The BIA never acknowledged this burden. On the contrary, as the quoted passage reflects, the BIA approached the case as if petitioner bore the burden of disproving that his conviction qualified him for removal. See also id. at 2 (finding petitioner "failed to establish that his conviction was vacated on the basis of a procedural or substantive defect in the underlying proceedings."). While formal error regarding the ascription of the burden of proof can, in itself, undermine the validity of a BIA decision, see Sandoval, 240 F.3d at 581; Murphy v. INS, 54 F.3d 605, 610, 612 (9th Cir. 1995), that is not the basis of our disposition here. Rather, as explained below, we conclude in more direct fashion that the evidence of record is legally insufficient to satisfy the INSs stringent burden of proof and, thus, that the order for removal must be reversed. See Sandoval, 240 F.3d at 583 (reversing removal order where record relating to reduction of aliens initially qualifying conviction to a non-qualifying offense was insufficient to support removal under clear and convincing evidentiary standard); see also Cortez-Acosta v. INS, 234 F.3d 476, 480-83 (9th Cir. 2000) (reversing removal order that had been based on suggestive but inconclusive indications of aliens removable activity (assisting illegal entry of another alien), "because the weakness of the administrative record does not satisfy the stringent [clear and convincing] evidentiary standard for deportation").      Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005). The court indicated the record before it was susceptible to two inferences: (a) that the felony conviction had been reduced to a misdemeanor, on the basis of an error in the original proceedings, so that it would no longer constitute a felony for immigration purposes, or (b) that the conviction had been reduced solely on the basis of considerations that arose after the conviction first came into existence, such as rehabilition or to avoid immigration consequences, and would therefore still constitute a felony for immigration purposes.      The court concluded: Given the vagaries of the evidentiary record and, more importantly, the plain implication of the state statute authorizing reduction of petitioners felony conviction to a Class B misdemeanor, we hold "that the INS did not prove by clear, unequivoval, and convincing evidence that [petitioner] was convicted of [a qualifying felony under 1101(A)(43) and 1227(a)(2)(A).]" Sandoval, 240 F.3d at 583. "Thus we are compelled to grant the petition for review, because the weakness of the administrative record does not satisfy the stringent evidentiary standard for deportation." Cortez-Acosta, 234 F.3d at 483.      Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005) (footnote omitted). Therefore, the court granted the petition for review, reversed directing the BIAs decision, and vacated the order for petitioners removal.      The Eleventh Circuit had previously applied the same standard to rule evidence of a conviction was insufficient to establish a firearms conviction ground of deportation. Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense, so as to be ineligible for 212(c) relief from deportation, where only evidence offered by government was traffic ticket that alleged unlawful possession of firearm, but contained many unfilled blanks, failed to specify basis for fine imposed, and did not explicitly indicate fact of conviction, offense of conviction, or charge to which alien might have pled guilty). The INS had relied exclusively on a single piece of evidence in support of its charge that Adefemi was deportable on the basis of a firearms conviction. This was a two-sided, preprinted document that would be colloquially termed a traffic "ticket." On the front appears a uniform citation form used to charge drivers with moving violations. On the reverse is boilerplate language for use in recording several types of action taken in the City Court of Atlanta, such as the receipt of a plea or the imposition of sentence.      The form provides no means of discerning Adefemis actual plea in this case: there is no indication that he amended an initial plea of not guilty to one of guilty, nor has anything been written in a space provided for stating the charge to which Adefemi, if he did enter a guilty plea, in fact admitted. Consistent with this ambiguity, none of three boxes printed next to each of three possible pleas--guilty, not guilty, and "nolo contd"--have been checked in a separate section of the form.      Below the sections bearing Adefemis signatures is another section titled "Disposition and Sentence," in which the word "Probation" has been rubber- stamped. Still lower, in a separate section, the number "330.00" has been written on a space for designating a "fine." The next line appears to state that a term of confinement shall be served should payment be defaulted. However, the portion of the form titled "Disposition and Sentence" has been left entirely blank apart from the "Probation" stamp and a second stamp that reads "State Case." Significantly, nothing has been written in spaces specifically reserved for identifying the "Sentence: Amount Fine/Forfeiture $" and the number of "Days (Months) probated." The failure of the Atlanta City Court to complete these sections makes it difficult to interpret the meaning of the "Probation" stamp, since the imposition of a probationary sentence would seem to require that a term of probation be set. [Footnote omitted.]      In the absence of additional evidence by which the INS might have clarified the meaning of the form, we do not think this document could allow a reasonable fact finder to conclude that the INS had shown any conviction by clear and convincing evidence. Our conclusion rests on the highly tenuous nature of any inferences drawn from what is in essence nothing more than the front and back of a traffic ticket, with a great many blanks left unfilled. [Footnote omitted.] While the document does indicate a fine of $330, it fails to specify the basis for this penalty. Nowhere does it explicitly indicate the fact of conviction, the offense for which any conviction was entered, or any specific charge to which Adefemi may have pled guilty.      Even were we to assume that the clerical stamp reading "Probation" and the reference to a fine are evidence of some kind of conviction, we do not think it can be said that they are clear and convincing evidence of conviction of a firearms offense. The fact that the front side of the document lists such an offense does not mean Adefemi pled to or was convicted of that offense, since he may well have pled guilty to another, lesser offense. The reverse side simply fails to offer any clear guidance as to what this offense may have been.      In sum, we think the "clear and convincing" evidentiary standard applicable in deportation proceedings requires something more than this ambiguous ticket before an individual may be "compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification." Woodby, 385 U.S. at 285. We also think a reasonable factfinder would have to conclude that the INS has not shown by clear and convincing evidence that Adefemi was convicted of a firearms offense. Adefemi v. Ashcroft, 358 F.3d 828, 835-837 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003).      The court therefore reversed the decision of the BIA and remanded the case for further proceedings consistent with its opinion.      The Seventh Circuit, as well, had applied this standard to the question of proof of a conviction to justify deportation. "[I]t is incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence." Woodby v. INS, supra, 385 U.S. at 277, 87 S.Ct. at 484; Garcia v. INS, 31 F.3d 441, 443 n.1 (7th Cir.1994). Where, as here, the Board finds that the INS has met that burden, it is our task to consider whether the deportation order is "supported by reasonable, substantial, and probative evidence." 8 U.S.C. 1105a(a)(4). See Woodby, 385 U.S. at 282-83, 87 S.Ct. at 486; Rosendo-Ramirez v. INS, 32 F.3d 1085, 1087 (7th Cir.1994).      Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction that noncitizen had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief, since it was nothing more than clerk of courts representation on what underlying court records reveal about nature of conviction, and there was no court record which confirmed that noncitizen had in fact used handgun in connection with armed robbery to which he pled guilty). Because the consequences of deportation are so harsh, the government must bear the burden of showing deportability by clear, convincing and unequivocal evidence before removal will be ordered.