(A)

In General.  A conviction vacated as legally invalid is generally viewed as illegal ab initio[13] and may not be used as a basis for deportation, removal, exclusion, statutory ineligibility to show Good Moral Character, or any other immigration purpose.[2]   The Attorney General has made it clear that the rule that state rehabilitative relief is ineffective to eliminate a conviction for immigration purposes does not apply when a conviction has been vacated on a ground of legal invalidity.[14] 

 

To be effective in eliminating the immigration consequences of a conviction, post-conviction counsel must obtain a court order in the original criminal case vacating or setting aside the conviction that meets a number of specific requirements:

 

(1)  First, the court order must vacate the conviction as being legally invalid on some ground.[4]  This ground can be either procedural or substantive, constitutional or statutory, but the court must declare the conviction to be legally invalid on the basis of a legal defect of some kind, as opposed to vacating it as a reward for showing rehabilitation or as a humanitarian gesture to avoid adverse immigration consequences.

 

(2)  Second, the court order vacating the conviction must hold that the conviction was legally invalid, by reason of a legal defect that was in existence at the time the conviction first arose.  “In accord with the federal court opinions applying the definition of a conviction at section 101(a)(48)(A) of the Act, we find that 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.”[5]  Therefore, so long as the legal defect was in existence at the time the plea or verdict was first entered, the vacatur is sufficient under Pickering to eliminate the immigration consequences of the conviction.

 

(3)  Third, the court order and supporting documents must not establish that the vacatur was “entered solely for immigration purposes.”[6]  Read in context, this does not require the immigration or federal courts to read the mind, and determine the subjective motivations, either of the defendant seeking post-conviction relief, or the criminal court judge granting the relief.  It was simply a shorthand for repeating the BIA’s conclusion that the record must not indicate that the only reason advanced by the defendant for vacating the conviction was the equitable consideration of the adverse immigration consequences arising from a legally valid conviction at a point in time after the conviction itself occurred.[15]

 

The Board has made it clear that it will follow the contrary rule in the Fifth Circuit only under compulsion.[16]  See § 10.5, infra.

[17] “Once a court grants a motion to withdraw a plea of guilty or a motion in the nature of coram nobis, however, the court’s action will eliminate the conviction for most immigration purposes.”  D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes (2007), § 4.2, p. 4-11, citing Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979).

[18] Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 454 F.3d 525 (6th Cir. July 17, 2006).  See also Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for immigration purposes; an interpretation of the statutory definition [of conviction to the contrary] 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); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains); Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of O., 7 I. & N. Dec. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. Dec. 677, 680 (BIA 1979).

[19] Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) (“This definition [of conviction, under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. Matter of P, 9 I. & N. Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien’s guilt.”).

[20] See Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003) (conviction must be vacated on ground of legal invalidity existing at the time the conviction arose, as opposed to later rehabilitative or immigration purposes, for its immigration effects to be eliminated).

[13] Id. at 624.

[14] Id. at 625.

[15] See, e.g., Saleh v. Gonzales, 495 F.3d 17 (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); United States v. Norbury, 492 F.3d 1012 (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. § 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); 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."); Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (if a court amends an alien's conviction for reasons solely related to rehabilitation or immigration hardships, as opposed to responding to procedural or substantive defects in the underlying criminal proceedings, then the alien remains "convicted" for immigration purposes).

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

BIA

INADMISSIBILITY " DATE OF CONSIDERATION " VACATED CONVICTION
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).

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 " 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).

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

Other

POST CON RELIEF " EFFECTIVE VACATUR " FIFTH CIRCUIT
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.