(D)  Full Faith and Credit Precludes Looking Behind Face of Vacatur.  The BIA cannot “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.[39]  Pickering does state that the same rules apply to foreign convictions as to domestic ones.[40]  This statement, however, was dictum, since Pickering involved a Canadian conviction.  The Full Faith and Credit clause of the Constitution,[41] and the parallel federal statute,[42] require courts to give full effect to state court orders, which “shall be presumed to have been rightly done, till the contrary appears . . . .  Every matter adjudicated, becomes a part of their record; which thenceforth proves itself, without referring to the evidence on which it has been adjudged.”[43]

 

            The “full faith and credit clause” of the Constitution is binding only upon state courts. [44]  Congress, however, by statute has also imposed the duty on federal courts to give full faith and credit to judgments of state courts. [45]

 

            A judgment of a court in one state is conclusive upon the merits in a court in another jurisdiction only if the court in the first state has power to pass on the merits.  But when the second court’s inquiry discloses that those questions had been fully and fairly litigated and finally decided in the court which rendered the original judgment, that judgment is entitled to full faith and credit.[46]  “It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. [Citations omitted.] As we recently noted in Allen v. McCurry, supra, ‘though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.’ 449 U.S., at 96, 101 S.Ct., at 416.”[47]

 

            Jurisdiction of the court rendering judgment is open to judicial inquiry when enforcement of judgment is sought elsewhere, but the burden of undermining the previous decree rests heavily upon the assailant.[48]  The mere fact that a state’s determinations of fact or law were erroneous is not sufficient to deny full faith and credit to that determination.[49]

 

            The BIA held that, because of “full faith and credit,” the immigration courts must accept that a state court vacated a judgment on grounds of a legal defect, and cannot “go behind” the state court judgment to determine whether the state court complied with its own laws in those proceedings.[50]  The judgment in that case stated that it was vacating the conviction “on the legal merits, as if said conviction had never occurred” pursuant to New York Criminal Procedure law Article 440, but did not state the specific grounds for vacating the judgment.   Notably, that statute provides a number of grounds on which a judgment can be vacated, but does not provide for expungement or dismissal due to “rehabilitation.”[51]

 

            In contrast, in Pickering the BIA did examine the reasons why a Canadian court quashed a conviction, and found that it did so only to eliminate the conviction for immigration purposes.  The court looked at the terms of the order itself, the law under which the Canadian court issued its order, and the reasons presented by the respondent in requesting the court vacate the order.[52]  The order did not cite the Canadian statutory scheme under which the conviction was dismissed.  While the defendant cited in his affidavit a Canadian statute which provides for relief from violation of the Canadian Charter of Rights and Freedoms, analogous to our Bill of Rights, there was no other support in the underlying documentation, nor any reference in the order to a substantive legal violation, which would justify dismissal of the conviction.[53]  The affidavit did state that the conviction was a bar to obtaining permanent residence in the United States, and that the purpose of the order was to eliminate that bar.  The court concluded that, under these circumstances, the order appeared to be entered solely for immigration purposes.

            The Full Faith and Credit statute precludes the immigration courts from nullifying a state court order vacating a conviction.  This doctrine does not apply as to Canadian convictions, only state convictions, and provides a basis on which Pickering can be distinguished from a case in which a state court has vacated a criminal conviction.  While both federal and state courts in the United States must give full faith and credit to any judgment of a state court empowered to enter the judgment, they need only recognize the judgment of a foreign court to the extent that this recognition comports with principles of judicial comity.[54]  Pickering, however, stated that domestic and foreign orders were subject to the same analysis.[55] Pickering also cites and approves Rodriguez-Ruiz. 

 

            The critical distinction seems to be how ambiguous the order is, and what “extrinsic” evidence may be used to determine its effect.  If a statutory scheme is cited as a basis for the order, as in Rodriguez-Ruiz, then whether that scheme provides for “rehabilitative” dismissals or only for dismissals on grounds of legal invalidity may be determinative.  If the statute cited provides for dismissals on the merits, full faith and credit precludes any further inquiry into the subjective reasons for the court’s order, the grounds stated by the defendant, or whether the state court was erroneous in finding that dismissal on the merits was warranted.

 

            In light of the ambiguous order and state court record, Sandoval placed the burden to prove deportability on the government.[56]  Since the government failed to disprove the “most logical conclusion, which is that the Illinois judge must have vacated the original conviction and modified Sandoval’s sentence accordingly,” Sandoval could not be deported.[57]  Also, because there was a legal basis for a proper vacation of conviction on the merits, the fact that the Illinois judge may have been motivated by the consequences of federal immigration law would not render the modification ineffective.[58]  Since Pickering involved a question of inadmissibility, rather than deportability, this provides an additional basis on which to distinguish Pickering from a case in which a conviction is being used as a ground of deportability.

 

            The Full Faith and Credit doctrine does not require the immigration courts to follow state definitions of what constitutes a “conviction” for immigration purposes.  This issue is determined by reference to the statutory definition of conviction.[59]  Thus, the District Court for the Northern District of Texas rejected a claim that because Texas law did not consider a “deferred adjudication” to be a conviction, the Full Faith and Credit statute required the federal court to accept this state rule.[60]

[39] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) (vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute).  See also Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103, 1107 (July 1, 2003).

[40] Id. at 624.

[41] United States Constitution, Art IV, § 1.

[42] 28 U.S.C. § 1738.

[43] Voorhees v. Jackson, 35 U.S. 449, 472 (1836).

[44] United States Constitution, Art IV, § 1.

[45] 28 U.S.C. § 1738.

[46] Durfee v. Duke, 375 U.S. 106 (1963).

[47] Kremer v. Chemical Const. Co., 456 U.S. 461, 481-482 (1982).

[48] Review v. Loyd, 205 F.Supp. 441 (W.D. La. 1962).

[49] See, e.g., Matter of Brady, Texas Mun. Gas Corp., 936 F.2d 212 (5th Cir. 1991); Turnbow v. Pacific Mut. Life Ins. Co., 934 F.2d 1100 (9th Cir. 1991); Salazar v. U.S. Air Force, 849 F.2d 1542 (5th Cir. 1988); Towers, Perrin, Forster & Crosby, Inc. v. Brown, 732 F.2d 345 (3d Cir. 1984).

[50] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[51] New York Ann. Crim. Proc. Laws § 440.10; see Matter of Pickering, 23 I. & N. Dec. 621, 623 (BIA 2003).

[52] Id. at 624.

[53] Id. at 625.

[54] Jaffe v. Accredited Surety and Casualty Co., Inc., 294 F.3d 584 (4th Cir. 2002).

[55] Pickering, 23 I. & N. Dec. at 624 (BIA 2003).

[56] Id. at 581, 583.

[57] Id. at 583.

[58] Id., citing Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979); Matter of O’Sullivan, 10 I. & N. Dec. 320 (BIA 1963).

[59] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[60] Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex.  2003). 

Third Circuit

POST CON RELIEF - EFFECTIVE ORDER - ARGUMENT THAT VACATED CONVICTIONS ARE NOT CONVICTIONS
In Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005), the Third Circuit held it was reasonable for the BIA to hold that a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but that convictions those vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes.  The court established a categorical test for distinguishing between these two types of vacatur: "To determine the basis for a vacatur order, the agency must first look to the order itself.  If the order explains the courts reasons for vacating the conviction, the agencys 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."  The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors."  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 Pinhos ineffective assistance claim."      The Third Circuit, however, also stated: "Given the expansive statutory definition of "conviction," and the deference the agencys interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that."  (Id. at ___ [emphasis supplied]).      If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction, INA 101(a)(48)(A), 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.      The suggestion in Pinho that the agency could adopt an interpretation of the statute that included as convictions even those that had been vacated as legally invalid was not part of the holding of the court.  This issue was not before the court in Pinho.  The language in question is therefore dictum.  R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).).      In fact, such an interpretation is unsupportable as well as unconstitutional, and should not be adopted.  It is unsupportable because the statute and legislative history give no support to this interpretation.  Elsewhere in Pinho, the court stated: Nothing in the statute specifically addresses vacated convictions.  Clearly they are not convictions that have been withheld.  If they are covered, then, it will be under the first disjunct: "a formal judgment of guilt of the alien entered by a court."   The statute is entirely silent with respect to the subsequent procedural history of a "judgment entered by a court," and the undoubted congressional purpose of closing the "withheld judgment" loophole tells us nothing whatsoever about what Congress purpose was with respect to vacaturs, or whether it had any purpose at all in that regard.  (Id. at ___ [footnote omitted].)      Since deportation on the basis of a conviction is a drastic result, the agency is not free to create out of whole cloth a statutory interpretation that has no support in the text or legislative history of the statute. Mr. Justice Douglas, speaking for a unanimous Supreme Court, stated:
"We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17).  It is the forfeiture for misconduct of a residence in this country.  Such a forfeiture is a penalty.  To construe this statutory provision less generously to the alien might find support in logic.  But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."  Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948).      Reiterating this principle, Chief Justice Warren has written,  "Although not penal in character, deportation statutes as a practical matter may inflict the equivalent of banishment or exile, . . . and should be strictly construed."  Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98 L.Ed. 1009 (1954).  While The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia Gonzales, saying, "We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked."  Garcia Gonzales  v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965). See also Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. at 384 n.8 (2005) (applying rule of lenity to aggravated felony definition in deportation context).      Aside from being an unsupportable interpretation, it would probably be unconstitutional to allow the agency to attach such drastic consequences to a conviction that the law of the case had determined to be unconstitutional.  As the court recognized, elsewhere in Pinho: Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agencys 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.  Id. at ___, n. 22.      Therefore, it would be not only unsupportable but unconstitutional to include as convictions those that had been vacated as legally invalid.      The court also stated: "We will not accept an interpretation of the Immigration and Nationality Act that permits, let alone requires, speculation by federal agencies about the secret motives of state judges and prosecutors."      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 Pinhos ineffective assistance claim." Suggest petition for rehearing in Pinho to eliminate the following language: "Given the expansive statutory definition of "conviction," and the deference the agencys interpretation is owed, the agency could have chosen to contend that as a matter of federal law all vacated state convictions remain "convictions" under 1101(a)(48)(A), whether rehabilitative or substantive. If the agency wishes to adopt this interpretation of the statutory definition it may do so, through rulemaking or adjudication, and it may defend that interpretation before the courts. But the agency has not done so, and it is another matter entirely for the agency to distinguish among vacated convictions based on the reasons for the vacatur, and then to arrogate to itself the power to find hidden reasons lurking beneath the surface of the rulings of state courts. Under the Supremacy Clause, the Department of Homeland Security may, pursuant to statutory authority, properly interpret 1101(a)(48)(A) to encompass convictions vacated by order of state courts. But it is far from clear that it may rewrite state-court rulings as to the legal basis for those orders. Our Federalism has not yet come to that." (Id. at ___ [emphasis supplied]).      The court should grant a petition for rehearing and eliminate this italicized language. This issue was not before the court in Pinho. The italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

POST CON RELIEF - CONVICTION - VACATUR CATEGORICAL ANALYSIS APPLIED TO PICKERING ISSUE
Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (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 courts reasons for vacating the conviction, the agencys 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.")
http://www.ca3.uscourts.gov/opinarch/043837p.pdf

Fifth Circuit

[DECISION VACATED - see below] POST-CONVICTION - TEXAS - VACATED CONVICTIONS - RENTERIA
United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004) (following Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), state conviction remains for immigration purposes, even though convicting court granted motion for new trial based upon substantive flaws in underlying proceeding).      In United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004), the first published Fifth Circuit court decision to cite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (convictions vacated based upon legal invalidity of underlying proceedings remain valid for immigration purposes), the three member panel reluctantly followed the holding of Renteria-Gonzalez, but was extremely critical of the decision, calling the results of the decision "patently absurd." United States v. Discipio, at *2.      The decision of one panel of the Fifth Circuit cannot overrule the decisions of another panel, noting that "[u]ntil the Fifth Circuit en banc or the Supreme Court reforms Renteria-Gonzalez, we must apply that decision as written." Id. at *3; see United States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003). Nonetheless, nearly the full length of the decision in Discipio was spent criticizing the logic and holding of Renteria-Gonzalez. The court went to far as to continue the stay of deportation for Discipio, "until the Clerk of this Court issues the mandate in this case," to prevent further consideration of the case from becoming moot. Id. The panel made no attempt to distinguish the Discipio from Renteria-Gonzalez on its facts.       The specific facts and BIA decision in this case may have had a part in setting the tone of the Discipio decision. The unpublished Board of Immigration Appeals case upon which this appeal was based, In re Discipio, A19 321 919, 2004 WL 880306 (BIA March 3, 2004) (unpublished), shows that the respondent was convicted, and apparently lived in Massachusetts. Although the respondent was initially detained by the INS in Boston, he was transferred to the detention facility at Oakdale, Louisiana, within the jurisdiction of the Fifth Circuit.      The BIA upheld the Immigration Judges denial of a motion for change of venue, stating that although the respondents family lived in Boston, their difficulty in travelling to Oakdale to attend proceedings was irrelevant, as the respondent had failed to indicate that he was going to call any of his family as witnesses. The BIA also rejected as "forum shopping" the respondents arguments that he was prejudiced by being brought under the jurisdiction of the Fifth Circuit and Renteria-Gonzalez, and that he should be subject to the law of First Circuit, as the only reason he fell under the jurisdiction of the Fifth Circuit was his transfer by the INS. Finally, the BIA stated that neither the BIA nor the Immigration Court has any jurisdiction over decisions of the INS to transfer a noncitizen from one jurisdiction to another, citing Matter of Rahman, 20 I. & N. Dec. 480 (BIA 1992); Matter of Victorino, 18 I. & N. Dec. 259 (BIA 1982); and 8 C.F.R. 1003.14(a), 1003.20(b). [DECISION VACATED] Discipio v. Ashcroft, ___ F.3d ___, 2005 WL 1635190 (5th Cir. July 13, 2005) (vacating prior panel decision, 369 F.3d 472 (5th Cir. 2004), and remanding to the BIA to allow government to terminate removal proceedings pursuant to Matter of Pickering, 23 I. & N. Dec. 621, 2003 WL 21358480 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), since the convictions in this case had been vacated on the merits on the basis of procedural and substantive defects and were thus no longer valid convictions for purposes of immigration proceedings). In short, the DHS indicated that it was going to follow Matter of Pickering, and move to terminate proceedings, despite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.2002) (holding that a conviction remains valid regardless of the reason it was vacated). The noncitizen Petitioners petition for rehearing en banc (which could have resulted in overruling Renteria), was therefore denied as moot. As Descipio (which was very critical of Renteria) was a panel decision only (and even though it is published), this may mean that the BIA will still consider itself bound to apply Renteria in the future. 

Thanks to Lisa Brodyaga

POST CON RELIEF - RENTERIA AMICUS - See AA-MODELS - MODEL PLEADINGS
Renteria-Gonzalez v. INS, 322 F.3d 804 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) ("[T]he INS cannot collaterally attack the Order To Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992 . . . .")

POST CON RELIEF - TEXAS DISTRICT COURTS DISTINGUISH RENTERIA
Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).

Other

POST CON RELIEF - EFFECTIVE ORDER - PICKERING
Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Benders Immigration Bulletin 1103 (July 1, 2003).