Tooby's California Post-Conviction Relief for Immigrants

 

(B)

Ambiguous Dismissal Orders.  If the dismissal order is ambiguous as to whether it was granted on a ground of legal invalidity, it will still be effective to eliminate the immigration effects of a conviction, wherever the government has the burden of proving the existence of a conviction for purposes of triggering immigration consequences such as removal.[403] 

 

            The Ninth Circuit reached this conclusion as to a dismissal order under Penal Code § 1385 in an unpublished decision:

 

            We conclude that the Government has not met its burden to show that Marmolejo is removable. A vacated conviction can serve as the basis of removal if the conviction was vacated for reasons “unrelated to the merits of the underlying criminal proceedings,” that is, for equitable or humanitarian reasons. *575 Matter of Pickering, 23 I. & N. Dec. 621, 624, 2003 WL 21358480 (BIA 2003). But a conviction vacated because of a “procedural or substantive defect” is not considered a “conviction” for immigration purposes and cannot serve as the basis for removability. Id. It is unclear from the record why Marmolejo's original conviction was vacated by the Superior Court of Santa Barbara County. The minute orders show that the conviction was vacated under California Penal Code § 1385, “in the interest of justice,” an amorphous concept that encompasses a broad range of relief. See People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, 648 (1996). Given this ambiguity, we do not believe the Government has met its burden to show that Marmolejo's conviction was vacated for equitable or humanitarian reasons.[404]

 

This should be the case even if there is some question about the validity of the dismissal order.[405]  The immigration courts are bound by the Full Faith and Credit doctrine to respect final state court orders that have not already been set aside on some basis.[406]

 

            This is the majority circuit rule in those circuits ruling on question. The BIA, DHS, and Immigration Judges sometimes state the burden is on the respondent, in deportation proceedings, 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 in deportation proceedings. 

 

The government also bears the burden of proof where it claims the immigrant is an arriving alien seeking admission.  While the government bears the burden of establishing removability for a noncitizen who has been lawfully admitted to the United States,[407] a noncitizen seeking admission normally bears the burden to show s/he is admissible.[408]  However, since a returning lawful permanent resident is not considered an applicant for admission unless he or she fits into one of the six exceptions,[409] 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. [410]  In a recent unpublished index decision, the BIA held that the government has the burden, in the case of a returning lawful permanent resident, of showing that s/he comes within one or more of six exceptions,[411] since that section creates a presumption that the government must overcome.[412]

 

            The only exception is 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.[413]

            In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence.[414]  In Cruz-Garza v. Ashcroft,[415] the Tenth Circuit applied the rule of Woodby v. INS[416] 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.

 

            This is because the immigration authorities have the burden of proof by “clear and convincing evidence” that petitioner’s conviction fell within the aggravated-felony ground of deportation and thus supported removal.[417]

 

            In Matter of Kaneda,[418] 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.[419]

 

            Because the consequences of deportation are so harsh, the government must bear the burden of showing deportability by clear, convincing and unequivocal evidence before removal will be ordered.  Any ambiguity in whether an order vacating a conviction is sufficient to satisfy the Pickering or Adamiak standard will be construed against the government, and result in an order terminating deportation proceedings.

 

            The Third Circuit, in Pinho v. Gonzales,[420] held that 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. [421]

 

Under this standard, the inquiry stops at the face of the order vacating the conviction if it is sufficient to establish the conviction was vacated on a ground of legal invalidity.[422]

 

            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,[423] 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.

 

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. [424]

 

            Finally, the Sixth Circuit refused to remand to allow the government to introduce additional proof that the conviction continued to exist.[425]

 

            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.

[403] Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) ("for the government to carry its burden in establishing that a conviction remains valid for immigration purposes, 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.") (original emphasis), citing Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006).

[404] Marmolejo v. Gonzales, 173 Fed.Appx. 573, 574-575 (9th Cir. March 10, 2006).

[405] Rashtabadi v. INS, 23 F.3d 1562  (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective).

[406] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 11.5 (2007).

[407] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

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

[409] See In re Collado, 21 I. & N. Dec. 1061, 1064 (BIA 1998).

[410] 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).

[411] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).

[412] Matter of Luna, A74 317 521, at 5 (BIA May 24, 2000) (index decision) http://www.usdoj.gov/eoir/vll/intdec/indexnet00/luna.pdf.

[413] Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. August 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).

[414] 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, 87 S.Ct. 483, 17 L.Ed.2d 362 (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).

[415] 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).  See also Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense, so as to be ineligible for 212(c) relief from deportation, where only evidence offered by government was traffic ticket that alleged unlawful possession of firearm, but contained many unfilled blanks, failed to specify basis for fine imposed, and did not explicitly indicate fact of conviction, offense of conviction, or charge to which alien might have pleaded guilty); Dashto v. INS, 59 F.3d 697, 701 (7th Cir. 1995) (certificate of conviction that noncitizen had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief, since it was nothing more than clerk of court’s representation on what underlying court records reveal about nature of conviction, and there was no court record which confirmed that noncitizen had in fact used handgun in connection with armed robbery to which he pleaded guilty).

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

[417] 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1229a(c)(3)(A); see Evangelista v. Ashcroft, 359 F.3d 145, 149-50 (2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003).

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

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

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

[421] Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. December 20, 2005).

[422] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) (according full faith and credit to a New York court’s vacation of a conviction under a statute that was neither an expungement nor a rehabilitative statute).

[423] Pickering v. Gonzales, ­465 F.3d 263 (6th Cir. Oct. 4, 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.

[424] Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

[425] Pickering v. Gonzales, ­465 F.3d 263 (6th Cir. 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).