(B)  Burden of Proof.  The burden of proof is on the party challenging the jurisdiction of the court to dismiss a change.  In Matter of Kaneda,[168] the BIA stated:

 

We have held that where a conviction is revoked and the charge dismissed by a trial judge that conviction cannot be used to sustain a finding of deportability. Matter of G, 7 I. & N. Dec. 171 (BIA 1956). We have also specifically held that when the Service claims that a trial judge lacked authority to dismiss a criminal charge after a conviction, such lack of jurisdiction must be affirmatively shown. Matter of Sirhan, 13 I. &N. Dec. 592 (BIA 1970); Matter of O’Sullivan, 10 I. & N. Dec. 320, 339 (BIA 1963). Here the Service has submitted no evidence that the trial judge lacked jurisdiction under Virginia law to rescind the respondent’s conviction.

It is worth noting that the same rule should apply if a party is challenging the jurisdiction of the court to issue an order vacating a conviction.  See Chapter 11, infra.

 

[168] Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979).

CONVICTION " EXISTENCE OF CONVICTION " CONVICTION VOID ON ITS FACE " CONVICTION FOR VIOLATION OF AN UNCONSTITUTIONAL STATUTE
Matter of Rodriguez-Carrillo, 22 I. & N. Dec. 1031, 1034 (BIA 1999) ([I]t is clear that an Immigration Judge and the Board cannot entertain a collateral attack on a judgment of conviction, unless that judgment is void on its face, and cannot go behind the judicial record to determine the guilt or innocence of an alien. See Matter of Madrigal, Interim Decision 3274 (BIA 1996).) (emphasis added). Note: A conviction pursuant to an unconstitutional statute is void on its face.

BIA

CONVICTION - VOID CONVICTION BY COURT WITHOUT JURISDICTION
Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (BIA can look behind facially valid conviction where state court wholly lacked authority to issue order).