Crimes of Moral Turpitude

 

In Matter of Pickering,[48] the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[49]  This decision expressly states it does not change the pre-existing rule that a vacatur which is based on a ground of legal invalidity existing at the time the conviction first arose is effective in eliminating the immigration consequences of a criminal conviction.[50]

 

 This is true even where the vacatur is based on a ground of legal invalidity that is related to immigration consequences, as long as it is clear that an error occurred at the criminal level.  See § 10.8, infra, for a discussion of some of these grounds.  In Matter of Adamiak,[4] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[5] 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 court clarified its previous decision in Matter of Pickering[6] as follows:

 

In our decisions addressing the effect of State court orders vacating convictions, we have distinguished between situations in which a conviction is vacated based on post-conviction events, such as rehabilitation, and those in which a conviction is vacated because of a defect in the underlying criminal proceedings. See Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003) (concluding that in light of the language and legislative purpose of the definition of a “conviction” at section 101(a)(48) of the Act, “there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships”); see also 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).

 

The Ohio court’s order permitting withdrawal of the  respondent’s guilty  plea is based on a defect in the underlying proceedings, i.e., the failure of the court to advise the respondent of the possible immigration consequences of his guilty plea, as required by Ohio law. To remedy the defect in the original proceedings, the trial court ordered that the respondent be afforded a new trial on the underlying drug trafficking charge. Under these circumstances, we find that the Ohio court’s vacation of the respondent’s conviction should be recognized in immigration proceedings. In the absence of a statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full faith and credit to this State court judgment.[7]

 

 Pickering itself repeatedly states that an order is ineffective only if it was “entered solely for immigration purposes.”[51]  Thus, if the motion or petition and the court order vacating the conviction recite any other reason or ground for vacating the conviction, aside from the immigration consequences, then the order must be respected.  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 the adverse immigration consequences.

 

            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.”[52]

 

The court also noted that "the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001).  Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction."[53] 

Constitutional Attack on Rule Allowing Unconstitutional Convictions to Trigger Adverse Immigration Consequences.  If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction includes as convictions even those that have been vacated as legally invalid on constitutional grounds such as ineffective assistance of counsel, the following arguments might be a starting point.

 

An interpretation that the statute defining conviction allows immigration authorities to ground adverse immigration consequences upon an unconstitutional conviction is itself unconstitutional. As the court recognized, in Pinho:[54]

 

Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agency’s interpretation, but also serves to avoid the constitutional problems that might arise under a reading which brings constitutionally protected conduct or constitutionally infirm proceedings into the category of “conviction”-cases, for example, involving an alien who was convicted of conduct subsequently deemed constitutionally protected, or whose conviction was reversed on direct appeal because of insufficient evidence, or whose conviction was vacated on collateral attack because of a plain constitutional defect. The agency does not read the statute as encompassing such situations, however, so these difficult cases have not come before us.[55]

 

In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because: “The only basis for the vacatur appearing in the order or the pleadings is Pinho’s ineffective assistance claim.”[56]

[57] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

[58] Id. at 625.

[59] For an excellent analysis of Pickering, see Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103 (July 1, 2003).  For a description of effective orders to vacate convictions, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 11.3-11.24 (4th ed. 2007).

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

[48] Ohio Revised Code § 2943.031.

[49] Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003); Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Immigration Bulletin 1103 (July 1, 2003).

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

[51] Id. at 625 (emphasis supplied).

[52] Pickering v. Gonzales, ­454 F.3d 263, 266 (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). 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).

[53] Pickering v. Gonzalez, 454 F.3d at 263, 267.  See also Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. Jan. 23, 2007) (although a petitioner’s immigration motive for seeking post-conviction relief is not sufficient by itself to hold vacatur ineffective for immigration purposes, there must be some demonstrable legal basis for the vacatur; defendant’s “state court petition and the uncontested order of the Arkansas court with the docket entry--‘On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City Attorney had no objection. Judge granted the motion.’--fail to provide the evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any recognized legal ground. On this record, the only reasonable inference that can be drawn is that the conviction was vacated for the sole purpose of relieving Sanusi from deportation.”).

[54] Pinho v. Gonzales, 432 F.3d 193 (3d Cir. Dec. 20, 2005) (a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes; 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.”).

[55] Id. at 209, n.22.

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