BIA Holds Court Order Vacating Conviction For Reasons Of Rehabilitation Or Immigration Hardship Does Not Eliminate Conviction For Immigration Purposes

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA HOLDS COURT ORDER VACATING CONVICTION FOR REASONS OF REHABILITATION OR IMMIGRATION HARDSHIP DOES NOT ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The Board of Immigration Appeals has ruled that the action of a criminal court in vacating a conviction did not eliminate the conviction for immigration purposes. The BIA based its ruling on its finding that the wording of the defendant’s request to vacate the conviction, and the court’s subsequent order quashing the conviction, indicates that the sole purpose of the action was for immigration purposes rather than any defect in the original conviction. On this basis, the BIA distinguished its ruling in Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000), where it found that an order vacating a conviction on the merits eliminates the conviction for purposes of immigration law. The latest ruling places particular importance on whether a court order vacating a conviction indicates that the order is based on the legal merits of the proceedings that led to the conviction.

The respondent in this case, Christopher Pickering, is a Canadian citizen who was convicted of unlawful possession of the drug LSD in Canada in 1980, for which he was sentenced to pay a $300 fine. In 1993, Pickering applied for adjustment of status in the United States. After learning that his controlled substance conviction would make him ineligible for adjustment, Pickering requested that the Canadian court quash the conviction, and the court issued an order to that effect in 1997. In 1998 the Immigration and Naturalization Service denied the adjustment application and initiated removal proceedings.

At Pickering’s removal hearing, the immigration judge refused to give effect to the Canadian court order quashing the conviction, and based on the conviction denied Pickering’s application for adjustment and ordered him removed. Pickering then appealed to the BIA, resulting in this ruling.

In evaluating the appeal, the BIA found that this case presents an issue that was not resolved in either Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), or Rodriguez-Ruiz. In Roldan, the BIA held that the definition of “conviction” enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) precludes the BIA from giving immigration effect to expungements or any other state procedures that erase a defendant’s record of guilt for rehabilitative purposes (Note: Roldan was overturned by the Ninth Circuit, which found that state expungements must be given immigration effect, where the defendant’s conviction could have been expunged under the Federal First Offender Act had he or she been prosecuted federally. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000)).

In Rodriguez-Ruiz, the BIA found that a conviction that was vacated on the merits pursuant to a New York statute did not constitute a conviction for immigration purposes. The BIA expressly declined “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. In this case, the BIA found 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.” The BIA concluded that where a court vacates a conviction “for reasons unrelated to the merits of the underlying criminal proceedings,” the conviction remains in effect for immigration purposes. In this case the BIA found no indication in the terms of the court order, provisions of Canadian law, or the respondent’s request for post-conviction relief, that the relief was based on a defect in the conviction or the proceedings that led to it. The BIA therefore concluded that the conviction continued to exist for immigration purposes.

In re Pickering, 23 I. & N. Dec. 621, Int. Dec. 3493
(BIA June 11, 2003).