(B)

Burden of Proof.  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.[1]

 

            In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence.[21]  In Cruz-Garza v. Ashcroft,[22] the Tenth Circuit applied the rule of Woodby v. INS[23] 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 placing of the burden coincides with older BIA case law:

 

            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. [24]

 

The Sixth Circuit later reversed Matter of Pickering on this issue, also finding that the Government has the burden of proving a vacated conviction still exists, using the test in Matter of Pickering, whenever the government bears the burden in immigration proceedings: [25] 

 

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. [26]

 

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

 

            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, where the Government bears the burden of proof, 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. [27]  On the other hand, the noncitizen may be required to show the conviction was vacated on a basis of legal invalidity when s/he bears the burden in proceedings.  The courts appear split on who bears the burden in the context of a motion to reopen.[28]

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

[21] 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).

[22] 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).

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

[24] Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979).  See also N. Tooby & J. Rollin, Criminal Defense of Immigrants § 11.8 (4th ed. 2007)..

[25] Pickering v. Gonzales, ­465 F.3d 263 (6th Cir. Oct. 4, 2006).

[26] Pickering v. Gonzales, 465 F.3d at 269.

[27] Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007); Saleh v. Gonzales, 495 F.3d 17, 20 (2d Cir. July 17, 2007) ("the Government bears the burden of proving, by clear and convincing evidence, that Saleh is removable . . . ."); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006); Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001).  See also 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).

[28] Compare 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); Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. Aug. 3, 2006) (noncitizen bears burden of showing conviction was vacated on a basis of legal invalidity where the order of removal has already become final, and the noncitizen is making a late motion to reopen/reconsider in light of the new evidence that the conviction has been vacated); Ali v. U.S. Attorney General, 443 F.3d 804 (11th Cir. Mar. 22, 2006), with Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen).

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.