The BIA will not look behind a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.[72]  The BIA rejected the Service’s argument that any conviction vacated for purposes of avoiding removal, rather than based on a legal defect in the criminal proceedings, remains a conviction under the INA; rather, a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute.[73]

 

            It is well-established that a noncitizen may not collaterally attack the constitutional validity of a state-court criminal conviction in immigration court.[74]  For the same reasons, the DHS should not be allowed to go behind a facially valid criminal court order vacating a conviction.

 

            In general, as an administrative agency, the INS (or EOIR) has no power to adjudicate the validity of convictions underlying deportation proceedings.  Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir.), cert. denied, 423 U.S. 1050 (1976).  Cf. Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) (plea procedurally defective and conviction set aside); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) (evidence of vacation of judgment available had counsel been given proper notice).  The proper forum in which to challenge a conviction is the trial court and not a proceeding before the Executive Office for Immigration Review (EOIR).  Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985); Ramirez-Juarez v. INS, 633 F.2d 174 (9th Cir. 1980); Wing v. INS, 46 F.2d 755 (7th Cir. 1931); De La Cruz v. INS, 951 F.2d 226 (9th Cir. 1991) (INS has no power to adjudicate validity of state convictions where alien alleges ineffective assistance of counsel in failing to inform of deportation consequences of guilty plea).[75]

 

            This rule should also apply against the DHS: it is a jurisdictional restriction on the power of the immigration courts, and should apply equally to the noncitizen and the Service.  By analogy to criminal cases, there is a due process argument that a procedural rule, such as this one, must be applicable equally to both parties in order to pass constitutional muster.  The Due Process Clause speaks “to the balance of forces between the accused and his accuser. [Citation.]”[76]  Thus, the United States Supreme Court has “been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial.  [Citations omitted.]”[77] 

 

The Seventh Circuit handled this issue in a slightly different way, holding the INS had not established that the state judge acted without authority under state law when implicitly vacating a judgment of a deportable marijuana conviction, and imposing a sentence that could only be imposed for a non-deportable conviction of first-offense possession of 30 grams or less of marijuana:

 

The INS also alleges that the modification was entered solely for immigration purposes, and is thus ineffective.  This allegation is unfounded.  The judge’s modification was in response to Sandoval’s properly filed motion stating a cognizable claim of ineffective assistance of counsel.  That Sandoval may have filed his motion in response to the threat of deportation is irrelevant.  Further, even if the state court judge’s decision to modify Sandoval’s sentence was motivated by the consequences of the federal immigration law, that fact would not render the modification ineffective for immigration purposes.  See Matter of Kaneda, 16 I.& N. Dec 677 (BIA 1979); Matter of O’Sullivan, 10 I. & N. Dec 320, Interim Decision 1294 (BIA 1963).[78]

 

The court thus held the BIA and IJ erred in finding respondent deportable, and remanded for entry of an order terminating deportation proceedings.

 

In deportation proceedings, the burden is on the government to show, by “clear and convincing evidence” that the respondent is deportable.  Therefore, if the evidence is ambiguous as to whether the criminal court vacated the conviction solely to avoid immigration consequences, the government cannot establish by the required level of proof that the conviction remains in existence for immigration purposes.  Therefore, when the immigration court lacks sufficient evidence to determine on which ground the criminal court relied to vacate the conviction, deportation proceedings should be terminated without remand for consideration of additional evidence.[79] 

 

            Where a state court order vacated a conviction, the immigration court may not refuse to give the order effect under a DHS argument it was vacated solely for purposes of avoiding the deportation consequences of the guilty plea.[80]

[72] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[73] Matter of  Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[74] Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir. 1993); Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985); Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977).

[75] D. Kesselbrenner and L. Rosenberg, Immigration Law And Crimes (2001), § 4.1, p. 4-2 n.1.

[76] Wardius v. Oregon, 412 U.S. 470, 474 (l973) [footnote omitted].

[77] Id., at p. 474 n.6; see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 104 L.Ed.2d 557, 565, 575 (l989) [concurring opinion of Scalia, J.]; Washington v. Texas, 388 U.S. 14, 24-25 (l967) [concurring opinion of Harlan, J.].

[78] Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001)(emphasis supplied).

[79] Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

[80] Matter of Velasquez-Herrera, A35-874-084 (BIA 2001).

BIA

BIA: Conviction is Final even though it's on Late Appeal"But Casts Doubt on Whether Finality is Still Required
The BIA today released a split decision holding that a late appeal of a criminal conviction does not undermine the conviction's finality. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). In Cardenas-Abreu, the BIA considered an appeal of a New York state criminal conviction for first degree burglary, NY Penal 140.30. The respondent failed to appeal his conviction within the 30 days allowed by New York's criminal procedure laws to file a direct appeal of a criminal conviction. Meanwhile, DHS initiated removal proceedings and the respondent was ordered removed due to his conviction. After being ordered removed, the respondent requested permission from a New York state court to file a late appeal pursuant to NY Crim. Proc. 460.30 which allows an appellate court to extend the time in which to file an appeal. The request was opposed by the prosecutor, but the New York court nonetheless allowed the respondent to file a late appeal of his criminal conviction. The BIA, therefore, was essentially charged with determining whether the existence of a late appeal means that the conviction is not final. After noting that Congress first defined the term conviction when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Board turned to its interpretation of Congress's intent in enacting IIRIRA: Congress intended to prevent the immigration laws from being 'dependent on the vagaries of State law' when it defined the term 'conviction' in section 101(a)(48)(A) of the Act. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Because allowing the pendency of a late appeal under New York's deadline extension statute would create[] significant uncertainty and delay in reaching an ultimate resolution regarding the existence of an otherwise final conviction, the Board concluded that the respondent's late appeal has no impact on the finality of his conviction. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Does INA Even Require Finality After IIRIRA? Several members wrote separate opinions to address an outstanding question that the majority opinion explicitly avoided deciding: Does the IIRIRA definition of conviction"found at INA 101(a)(48)(A)"require finality to serve as the basis for removal? This issue is being considered by federal courts and has enormous implications for immigrants facing removal because of criminal convictions. For its part, the majority suggested that finality is required: The legislative history of the IIRIRA accompanying the adoption of the definition of a conviction gave no indication of an intent to disturb this principle that an alien must waive or exhaust his direct appeal rights to have a final conviction. With this backdrop regarding the broad context of this issue and the statute, a forceful argument can be made that Congress intended to preserve the long-standing requirement of finality for direct appeals as of right in immigration law. Matter of Cardenas-Abreu, 24 I&N Dec. at 798 (internal citations omitted). Board Member Greer, in a lengthy dissenting opinion joined by Board Members Neal, Miller, Hess, Adkins-Blanch, and Wendtland, argued that INA 101(a)(48)(A) requires that a conviction must be final if it is to be used to remove a non-citizen from the country. Matter of Cardenas-Abreu, 24 I&N Dec. at 811 (Greer, dissenting). Similarly, in a concurring opinion, Board Member Grant explained that the 'finality' requirement does still apply to cases where a direct appeal is pending or direct appeal rights have not been exhausted. Matter of Cardenas-Abreu, 24 I&N Dec. at 802 (Grant, concurring). In contrast, Board Member Pauley, joined by Board Member Cole, explained at length that INA 101(a)(48)(A) contains no finality requirement. Matter of Cardenas-Abreu, 24 I&N Dec. at 810 (Pauley, concurring).