Matter of Rodriguez-Ruiz: Conviction Vacated under New York Statute Does Not Constitute a "Conviction" for Immigration Purposes

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MATTER OF RODRIGUEZ-RUIZ: CONVICTION VACATED UNDER NEW YORK STATUTE DOES NOT CONSTITUTE A "CONVICTION" FOR IMMIGRATION PURPOSES
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

The Board of Immigration Appeals has issued a precedent decision finding that a conviction vacated under Article 440 of the New York Criminal Procedure Law does not constitute a conviction for purposes of immigration law. The decision distinguishes the BIA's ruling in Matter of Roldan, Int. Dec. No. 3377 (BIA 1999), in which it held that the new INA definition of "conviction" enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminates the effect of expungements under state rehabilitative statutes (for background about Roldan, see "9th Circuit Finds Expungement Can Eliminate Immigration Effects of Drug Conviction, Overruling BIA's Roldan Decision," Immigrants' Rights Update, Aug. 31, 2000, p. 7).

In this case the respondent is a lawful permanent resident who pled guilty to sexual abuse in the third degree in March 1999. He was given a one-year probationary sentence, and the INS initiated removal proceedings against him. In October 1999, the state court that accepted the guilty plea entered an order vacating the conviction under Article 440. At the respondent's hearing in November 1999, the immigration judge nonetheless denied his motion to terminate the proceedings and found him deportable as an aggravated felon.

On appeal, the BIA distinguished Roldan by finding that Article 440 is neither an expungement statute nor a rehabilitative statute. Rather, in this case, the New York court ordered the conviction "in all respects vacated, on the legal merits, as if said conviction had never occurred and the matter is restored to the docket for further proceedings." On the appeal the INS argued that because the conviction was vacated for purposes of avoiding removal, and not because of a constitutional or legal defect in the criminal proceedings, the order vacating the conviction should not be recognized. The BIA rejected this argument, declining "to go behind the state court judgment and question whether the New York court acted in accordance with its own state law in the context of these proceedings." Instead, the BIA accorded "full faith and credit" to the state court judgment, sustained the appeal, and ordered the removal proceedings terminated.

Matter of Rodriguez-Ruiz, Int. Dec. 3436 (BIA Sept. 22, 2000).