Criminal Defense of Immigrants


§ 11.3 (B)

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(B)  Current Authority.  In Matter of Adamiak,[11] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[12] on the ground that the trial court failed to advise the defendant of the possible immigration consequences of a guilty plea, as required by a state advisal statute, was no longer a valid conviction for immigration purposes.  See § 11.4, infra.  The Third Circuit, as well, interprets Pickering consistently with the BIA.[13]  A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but 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.[14]


The Sixth Circuit recently reaffirmed the basic rule of Pickering concerning when an order vacating a conviction is effective to eliminate immigration consequences, and when it is not:


“[T]he BIA correctly interpreted the law by holding that, if a court vacates an alien’s conviction for reasons solely related to rehabilitation or to avoid adverse immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.”)[15]


Thus, the Pickering rule is now the law nationwide, with the possible, temporary exception of the Fifth Circuit. 

[11] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[12] Ohio Revised Code §   2943.031.

[13] Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005) (approving the Board’s distinction between “convictions vacated for rehabilitative purposes and those vacated because of underlying defects in the criminal proceedings”).

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

[15] Pickering v. Gonzales, ­454 F.3d 525, 527 (6th Cir. July 17, 2006), approving Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003) on this point, while reversing the BIA’s judgment and remanding to the BIA for an order terminating deportation proceedings for failure to meet the burden of proof that a deportable conviction continued to exist. Cf. Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. Jan. 23, 2007) (“We hold that the present case is distinguishable from Pickering on the ground that, unlike the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction[, since] it is well settled that there is no obligation to advise a criminal defendant of the collateral immigration consequences of entering a guilty plea.”), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).



Third Circuit

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).