In deportation proceedings,[66] the BIA, DHS, and Immigration Judges sometimes state the burden is on the responden to establish that a conviction no longer exists because post-conviction relief has been obtained sufficient to eliminate its immigration consequences.  The proper rule, however, is to the contrary wherever the government bears the general burden of proof.  If the order vacating the conviction is ambiguous as to whether it was issued on a ground of legal invalidity, or issued as a matter of rehabilitative relief, the government cannot sustain its burden of proof.

 

The government also bears the burden of proof where it claims a returning lawful permanent resident is seeking admission.  A noncitizen seeking admission normally bears the burden to show s/he is admissible.[67]  However, since a returning lawful permanent resident is not considered an applicant for admission unless s/he fits into one of the six exceptions,[68] the government bears the burden of showing whether the returning lawful permanent resident fits into one of those exceptions, and is therefore subject to the grounds of inadmissibility and forced to bear the burden of proof. [69]  See § 17.6, infra. 

 

                One court has identified an exception, where the noncitizen has already been ordered deported, the removal order has become final, and the 90-day period for reopening the matter has elapsed: at that point, the burden is on the noncitizen to show that good cause exists to reopen the case.[70]

                In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence.[71]  In Cruz-Garza v. Ashcroft,[72] the Tenth Circuit applied the rule of Woodby v. INS[73] 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 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 INS’s stringent burden of proof and, thus, that the order for removal must be reversed.[74]

 

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 petitioner’s 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.[75]

 

Therefore, the court reversed the BIA’s decision and vacated the order for petitioner’s removal.

 

                In Matter of Kaneda,[76] the Attorney General 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.

 

                In the Seventh Circuit, as well, the government has the burden of proving that a conviction still exists after post-conviction relief has been granted.  The court reasoned that in light of the ambiguous order and state court record, the burden to prove deportability remained on the government.  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,” the respondent could not be deported.[77]

 

                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,[78] but reversed the BIA’s judgment and remanded the case to the BIA for an order terminating deportation proceedings for failure to meet the burden of proof that a deportable conviction continued to exist.  The Sixth Circuit applied the normal Woodby burden of proof on the government to the question of a conviction that may or may not effectively have been eliminated – for immigration purposes – by means of post-conviction relief.

 

When the government seeks to deport a resident alien, it carries a heavy burden. Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630, 636 (1967). To support a determination that an immigrant is deportable, the government must establish its allegations by “clear, unequivocal, and convincing evidence.” Zaitona, 9 F.3d at 434 (quoting Woodby v. INS, 385 U.S. 276, 285 (1966)). Once the INS has established its prima facie case, the burden of going forward to produce evidence of non-deportability then shifts to the petitioner. Id. (internal citations and quotation marks omitted). As an initial matter, the government has satisfied its prima facie case by pointing to evidence that the Petitioner was convicted of a drug crime. The Petitioner, for his part, has produced evidence that the conviction for which the government wishes to deport him has been vacated by a court of competent jurisdiction. This is sufficient to meet his burden under Zaitona of showing non-deportability. Accordingly, the Petitioner is deportable only if the government can show, with clear, convincing and unequivocal evidence, that the conviction was vacated solely for immigration reasons. See id.; see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir.2005). To prove deportability in this case, the government must produce evidence of a conviction that remains valid for immigration purposes. In order to meet its burden, the government must prove, with clear, unequivocal and convincing evidence, that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration consequences. The government has failed to meet its burden. [79]

 

The Sixth Circuit pointed out the fundamental inconsistency of the BIA’s reasoning in Pickering:

 

In the instant case, because the Canadian court order made no reference to any legal authority, the BIA presumed that its decision was made solely for immigration purposes. J.A. at 38, 23 I & N Dec. at 625. While assuming that the Canadian court adopted the Petitioner’s motive, the BIA has also assumed that it ignored the legal basis the Petitioner articulated for seeking to have his conviction quashed.

 

In his notice of appeal to the Canadian court (J.A. at 58, ¶  6), and in the affidavit in support of said appeal (J.A. at 61, ¶  21), the Petitioner indicates that he is appealing his conviction pursuant to §   24(1) of the Canadian Charter of Rights and Freedoms. Section 24(1) provides that: “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may appeal to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just.” Affidavit of Kent Roach, J.A. at 40, ¶  7. The Petitioner presented expert testimony, via affidavit, which concluded that, in order to quash the Petitioner’s conviction, the Canadian court “must have concluded that [his] rights under the Canadian Charter of Rights and Freedoms [had] been violated.” Id. at 41, ¶  8.

According to the expert testimony provided by the Petitioner, which was undisputed by the government, a Canadian court can quash a conviction under §   24(1) of the Charter only for reasons related to a violation of rights granted Canadian citizens in the Canadian Charter of Rights and Freedoms. Id. at 41, ¶  10. If the Canadian court acted pursuant to the legal authority cited and relied upon by the Petitioner, it could not have acted solely for immigration reasons. In presuming that the Canadian court quashed the conviction for immigration reasons, the BIA concluded that the Canadian court assumed the Petitioner’s motives as stated in his affidavit and notice of appeal, but did not consider the legal authority he cited. [80]

 

Because the record did not include a record of the hearing in the post-conviction proceedings before the Canadian criminal court, it was incomplete, and the Sixth Circuit found it impossible to tell the extent to which the Canadian court relied upon Petitioner’s motive, or even why the Canadian court acted in the manner it did.

 

                Finally, the Sixth Circuit refused to remand to allow the government to introduce additional proof that the conviction continued to exist.[81]

 

                Therefore, the circuits speaking on the issue are unanimous in applying the Woodby standard to the question whether a purportedly vacated conviction continues to exist for immigration purposes, and any ambiguity or failure of the record in this respect means the government has failed to meet its burden of proof that a deportable conviction exists.

[66] See Chapter 17, infra.

[67] INA § 240A(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

[68] See Matter of Collado, 21 I. & N. Dec. 1061, 1064 (BIA 1998).

[69] Matter of Kane, 15 I. & N. Dec. 258, 264 (BIA 1975) (citing Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)); cf. Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004)(failing to decide burden of proof).

[70] Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. Aug. 3, 2006) (where noncitizen files a belated motion to vacate an order of removal, and placing the burden of showing a deportable conviction on the noncitizen accords with the usual BIA rules that the burden is on the noncitizen to show that there is a reason to reopen or to reconsider the case, the BIA was not compelled to find that the noncitizen had met the burden, and the remaining claims were barred by the exhaustion doctrine).

[71] INA § 240A(c)(3)(A), 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 (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).

[72] 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).

[73] Woodby v. INS, 385 U.S. 276 (1966).

[74] Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005).

[75] Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005) (footnote omitted).

[76] Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979).  See also § 11.8, infra.

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

[78] 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.

[79] Pickering v. Gonzales, 454 F.3d 525, 530 (6th Cir. July 17, 2006).

[80] Pickering v. Gonzales, 454 F.3d 525, 529-530 (6th Cir. July 17, 2006).

[81] Pickering v. Gonzales, ­454 F.3d 525 (6th Cir. July 17, 2006)(where immigration court lacked sufficient record of documents on which criminal court based decision to vacate conviction, and government therefore failed to show by clear and convincing evidence that the criminal court had vacated the conviction solely to avoid immigration consequences, removal proceedings ordered terminated without remand for consideration of additional evidence).

Second Circuit

POST CON RELIEF - EFFECTIVE ORDER - FULL FAITH AND CREDIT
Saleh v. Gonzales, ___ F.3d ___, 2007 WL 2033497 (2d Cir. July 17, 2007) (amendment of the removable conviction was secured solely to aid petitioner in avoiding immigration consequences and was not based on any procedural or substantive defect in the original conviction; BIA did not violate full faith and credit by failing to honor the amendment, since post-conviction motion stated it was brought for immigration purposes and failed to identify any substantive or procedural defects in the conviction), citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005).

Ninth Circuit

POST CON RELIEF " EFFECTIVE ORDER " ARGUMENT BIA MUST ACCEPT STATE COURT POST-CONVICTION NUNC PRO TUNC ORDERS VACATING CONVICTIONS
Amponsah v. Holder, 709 F.3d 1318 (9th Cir. Mar. 22, 2013) (BIA's blanket rule against recognizing state courts' nunc pro tunc adoption decrees constitutes an impermissible construction of the term child in 8 U.S.C. 1101(b)(1)(E), and thus is not due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council , Inc., 467 U.S. 837, 843 (1984); the BIAs interpretation is unreasonable because it gives little or no weight to the federal policy of keeping families together, fails to afford deference to valid state court judgments in the area of domestic relations, which is primarily a matter of state concern, and addresses the possibility of immigration fraud through a sweeping blanket rule rather than considering the validity of nunc pro tunc adoption decrees on a case-by-case basis).

POST CON RELIEF - EFFECTIVE ORDER - COMITY AND RESPECT FOR STATE COURTS' DECISIONS - FULL FAITH AND CREDIT
The Ninth Circuit has recognized that a proper respect for state and federal courts requires that their orders be considered valid and effective, unless they can be shown to be otherwise. Rashtabadi v. INS, 23 F.3d 1562, 1569 (9th Cir. 1994). In Rashtabadi, the Ninth Circuit acknowledged what the United States Supreme Court stated well more than a century ago:

"There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears; and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings, from the initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated, becomes a part of their record; which thenceforth proves itself, without referring to the evidence on which it has been adjudged."

Id. (quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed 490 (1836) (quotation in original, supporting citations omitted). "Principles of comity, finality and economy all militate in favor of placing the burden of attacking court judgments and orders on the party who seeks to upset them." Id. The Board itself has acknowledged and applied these same principles. See Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (rejecting the INS's argument that the Board should go behind a state court vacatur of judgment to determine whether it was entered for purposes of avoiding removal, according full faith and credit to the state court judgment, and relying on 28 U.S.C. 1738, which requires federal courts to accord full faith and credit to state court judgments). At least where a substantive defect must be found to support a vacatur, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) does not require a different result.

As the Ninth Circuit previously held, "[c]ertain areas of criminal regulation are beyond Congress's reach[,]" even in the immigration arena, which Congress possesses exclusive authority to regulate. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 - 914 (9th Cir. 2004). The Board has no authority to reach into the merits of a change of plea proceeding; that proceeding was governed by, and carried out pursuant to, state law. Accordingly, the vacatur of a state conviction must be accorded full faith and credit by the Board and by the Court.

Thanks to Deborah S. Smith.

Eleventh Circuit

POST CON RELIEF - VACATED CONVICTION IS A LEGAL NULLITY UNDER FEDERAL IMMIGRATION LAW CONTROLLED SUBSTANCES - INADMISSIBILITY - REASON TO BELIEVE ILLICIT TRAFFICKER
Garces v. U.S. Attorney General, 611 F.3d 1337 (11th Cir. July 27, 2010) (no contest plea to a later-vacated conviction and hearsay statements in the police report are insufficient to establish noncitizen was inadmissible for "reason to believe" he engaged in drug trafficking); see Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006) (a vacated conviction is a legal nullity for purposes of federal immigration law if the reason for vacatur is a constitutional, statutory, or procedural defect in the underlying criminal proceedings); cf. Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379-80 (BIA 2000) (the vacatur need not derive from the violation of a federal right necessarily; violation of a state right will be granted full faith and credit); see Matter of Adamiak, 23 I. & N. Dec. 878, 879-80 (BIA 2006) (a vacatur has no bearing on immigration proceedings if obtained under a rehabilitative statute or to help avoid "immigration hardships"); cf. Resendiz-Alcaraz v. U.S. Atty Gen., 383 F.3d 1262, 1267-69 (11th Cir. 2004) (a conviction expunged by completing probation held still a conviction for immigration purposes). PCN:4.6;CD4:11.5;AF:6.4;SH:4.28;CMT3:10.4