Criminal Defense of Immigrants


§ 11.4 A. General Rule

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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.[44]  The BIA in Matter of Pickering stated that the same rules apply to foreign convictions as to domestic ones.[45]  This statement, however, was dictum, since Pickering involved a Canadian conviction.  The Full Faith and Credit clause of the Constitution,[46] and the parallel federal statute,[47] 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.”[48]


The “full faith and credit clause” of the Constitution is binding only upon state courts. [49]  Congress, however, by statute has also imposed the duty on federal courts to give full faith and credit to judgments of state courts.[50]

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.[51]  “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.”[52]


Jurisdiction of the court rendering judgment is open to judicial inquiry when enforcement of judgment is sought elsewhere, see § 11.8, infra, but the burden of undermining the validity of the previous decree rests heavily upon the assailant.[53]  The mere fact that a state’s determinations of fact or law may be erroneous is not sufficient to deny full faith and credit to that determination.[54]


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.[55]  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.”[56]


In contrast, in Pickering the BIA did examine the reasons why a Canadian court quashed a conviction, and found that it did so not on any ground of invalidity but 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.[57]  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 the United States Bill of Rights, there was no other support in the underlying documentation, nor any reference in the order to a substantive legal ground of invalidity, which would justify vacating the conviction.[58]  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 BIA 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 to Canadian or other foreign convictions, only to 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.[59]  Pickering, however, mistakenly stated that domestic and foreign orders were subject to the same analysis.[60]  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 vacaturs 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 an ambiguous order and state court record, the Seventh Circuit in Sandoval placed the burden to prove deportability on the government.[61]  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.[62]  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.[63]  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, however, 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 federal statutory definition of conviction.[64]  See Chapter 7, supra.


The federal criminal courts have also held that the federal sentencing effect of a state conviction is a matter of federal law, and they are not obligated by the Full Faith and Credit Statute to follow state law concerning whether the disposition constitutes a conviction for federal sentence enhancement purposes.[65]

[44] 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); Renteria-Gonzalez v. INS, 322 F.3d 804 (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 . . . .”), citing Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992) (“If the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”).  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).

[45] Pickering, supra, at 624.

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

[47] 28 U.S.C. § 1738.

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

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

[50] 28 U.S.C. § 1738.

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

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

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

[54] 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).

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

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

[57] Id. at 624.

[58] Id. at 625.

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

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

[61] Sandoval v. INS, 240 F.3d 577, 581, 583 (7th Cir. 2001).

[62] Id. at 583.

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

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

[65] United States v. Fazande, ___ F.3d ___ (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a “prior conviction” for purposes of sentence enhancement under 18 U.S.C. § 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act, 28 U.S.C. § 1738, required the federal criminal court to honor that conclusion, since “the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime.”), following United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) (“[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state’s determination in any way, interprets how to apply New York’s youthful offender adjudications to a Guidelines analysis.”) (internal citation and quotation marks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir. 1991) (“[D]octrines such as Full Faith and Credit, ... and related jurisdictional principles, are inapplicable ... where the issue is the role of prior state convictions in a federal sentencing scheme.”); United States v. Carter, 186 Fed.Appx. 844, 847 (10th Cir. 2006) (unpublished) (“It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law.”); see also United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997) (rejecting defendant’s argument that “because he had successfully completed his two-year deferred adjudication probation,” that offense “could not be used to enhance his punishment ... under § 841(b)(1)(A)”); United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase “have become final” in 18 U.S.C. § 841(b)(1)(B) is a question of federal law, not state law).




Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

Second Circuit

Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for mmigration purposes; an interpretation of the statutory definition [of conviction to the ontrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a "conviction" for immigration purposes, because the "conviction" would be established on the date of the entry of the plea. We reject this reading because "[a] statute should be interpreted in a way that avoids absurd results."), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000).

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.

Ninth Circuit

Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.


In Padilla v. Kentucky, the Supreme Court implied that a conviction that was vacated on a ground of legal invalidity, such as ineffective assistance of counsel, no longer existed for immigration purposes. This rejects the argument that the 1996 statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), does not expressly state that post-conviction relief eliminates a conviction for immigration purposes and therefore post-conviction relief does not do so. Padilla therefore suggests that the Fifth Circuit decisions in Discipio v. Ashcroft, 417 F.3d 448, 450 (5th Cir. 2005) and Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002) are no longer good law. Thanks to Dan Kesselbrenner.