Crimes of Moral Turpitude

 

(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).