A number of grounds of legal invalidity do have some relationship to the immigration consequences of the conviction, but are effective nonetheless in eliminating those consequences provided the requirements of Pickering are met.  For example, in Matter of Adamiak,[82] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[83] 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, is no longer a valid conviction for immigration purposes.  The order vacating the criminal conviction was completely effective to eliminate the immigration consequences of the conviction, despite the fact that the ground of legal invalidity had something to do with the immigration consequences of the conviction.  Since a vacatur based on a statutory violation relating to immigration consequences was sufficient to eliminate them, a fortiori a constitutional ground of legal invalidity of the conviction is effective as well. See § 11.4(B), supra.

 

The government may argue, however, that if a conviction is vacated “for immigration reasons,” the vacatur is ineffective to eliminate the adverse immigration consequences of the conviction.  In order to avoid the legitimate part of this argument, the court order vacating the conviction, and the supporting documents, must not establish that the vacatur was “entered solely for immigration purposes.” [84]  Because of the possibility that the government or the immigration courts may misconstrue Pickering, post-conviction counsel would be wise to de-emphasize the immigration-related facts of the case and their relation to the ground of invalidity.  If possible, vacate the conviction on a ground of legal invalidity that is completely unrelated to the immigration consequences of the conviction.  At least ensure that the court order and if possible reporter’s transcript of the hearing on the motion to vacate do not mention the immigration consequences.  The immigration consequences may be mentioned as a motive for seeking to invalidate the conviction, so long as it is clear that the court order vacating the conviction is based on a ground of legal invalidity, independent of the immigration consequences, that was in existence at the time of plea or verdict arose.

 

Immigration counsel will be faced with court orders vacating convictions that are based on grounds that are somewhat related to the immigration consequences of the conviction, either because the orders were handed down before Pickering was decided or because the only ground of legal invalidity upon which the vacatur could be obtained bears some relationship to the immigration consequences.

 

A number of arguments are available by which to argue that such orders vacating convictions are indeed effective to eliminate the immigration consequences of a conviction. 

 

First, Pickering itself repeatedly states that an order is ineffective only if it was “entered solely for immigration purposes.” [85]  Thus, if there is any other reason or ground underlying the order to vacate the conviction, aside from the immigration consequences, then the order must be respected.  In Pickering, neither the court order, the request for post-conviction relief, nor the supporting affidavit “identifie[d] a basis to question the integrity of the underlying criminal proceeding or conviction.”[86]  The record of the state court post-conviction proceedings can therefore contain the powerful equitable arguments, related to the immigration consequences now confronting the client, without removing the effect of the vacatur in eliminating the immigration consequences of the order so long as the order is granted on a ground other than the sole humanitarian desire to eliminate those consequences.

 

Second, 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.[87]  See § 11.5, supra.

 

Third, a number of grounds of legal invalidity do have some relationship to the immigration consequences of the conviction, but are effective nonetheless in eliminating those consequences provided the requirements of Pickering are met.  See § 11.70, infra. 

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

[83] Ohio Revised Code § 2943.031.

[84] Matter of Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003).

[85] Matter of Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003) [emphasis supplied].

[86] Ibid.

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

BIA

POST CON RELIEF - EFFECTIVE ORDER - MOTION TO REOPEN - BURDEN OF PROOF THAT CONVICTION HAD NOT BEEN VACATED SOLELY FOR IMMIGRATION PURPOSES IS ON RESPONDENT IN MOTION TO REOPEN
Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA Aug. 31, 2007) (noncitizen seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes). http://www.usdoj.gov/eoir/vll/intdec/vol24/3578.pdf

Note: It is unclear from the facts of this case whether the noncitizen was charged with inadmissibility or deportability. Therefore it is unclear who bore the original burden of proof. The BIA specifically distinguishes this situation from that when a noncitizen is not yet subject to a final order of removal. The BIA also notes a circuit split on this issue in the motion to reopen context. Compare Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir. 2006) with Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006).

Second Circuit

POST CON RELIEF - EFFECTIVE ORDER - GOVERNMENT HAS BURDEN OF PROOF OF CONTINUED EXISTENCE OF CONVICTION
Saleh v. Gonzales, ___ F.3d ___, ___ n.4, 2007 WL 2033497 (2d Cir. July 17, 2007) ("the Government bears the burden of proving, by clear and convincing evidence, that Saleh is removable . . . ."), citing 8 U.S.C. 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465 F.3d 263, 268-69 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005).

Sixth Circuit

POST CON RELIEF " EFFECTIVE ORDER " BURDEN
Barakat v. Holder, 621 F.3d 398 (6th Cir. Aug. 18, 2010) (government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons).

Ninth Circuit

POST CON RELIEF " EFFECTIVE ORDER " GOVERNMENT HAS BURDEN OF PERSUASION THAT STATE COURT VACATED A CONVICTION SOLELY FOR IMMIGRATION PURPOSES
Reyes-Torres v. Holder, ___ F.3d ___, ___, 2011 WL 1312570 (9th Cir. Apr. 7, 2011) (the government bears the burden to prove that a conviction was vacated solely for immigration purposes, and is thus still a conviction for immigration purposes, and the BIA must make this determination before the circuit court can address it).