THOMAS and THOMPSON

Cite as 27 I&N Dec. 674 (A.G. 2019) Interim Decision #3966

Matter of Michael Vernon THOMAS, Respondent

Matter of Joseph Lloyd THOMPSON, Respondent

Decided by Attorney General October 25, 2019

U.S. Department of Justice

Office of the Attorney General

(1) The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada

will no longer govern the effect of state-court orders that modify, clarify, or otherwise

alter a criminal alien’s sentence.

(2) Such state-court orders will be given effect for immigration purposes only if based on

a procedural or substantive defect in the underlying criminal proceeding; these orders

will have no effect for immigration purposes if based on reasons unrelated to the merits

of the underlying criminal proceeding, such as rehabilitation or the avoidance of

immigration consequences.

BEFORE THE ATTORNEY GENERAL

On May 28, 2019, I directed the Board of Immigration Appeals (“Board”)

to refer this case for my review and invited the parties and interested amici

to submit briefs addressing relevant questions. Matter of Thomas & Matter

of Thompson, 27 I&N Dec. 556 (A.G. 2019).

For the reasons set forth in the accompanying opinion, I overrule the

Board’s decisions in Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005);

Matter of Song, 23 I&N Dec. 173 (BIA 2001); and Matter of Estrada,

26 I&N Dec. 749 (BIA 2016). The tests described in those cases will no

longer govern the effect of state-court orders that modify, clarify, or

otherwise alter a criminal alien’s sentence. Instead, for reasons similar to

those explained in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d

on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), such

state-court orders will be given effect for immigration purposes only when

the orders are based on a procedural or substantive defect in the underlying

criminal proceeding. These state-court orders will have no effect for

immigration purposes when based on reasons unrelated to the merits of the

underlying criminal proceeding, such as rehabilitation or immigration

hardship.

Accordingly, I vacate the decisions below and remand these cases to the

Board to reassess whether the relevant state-court sentence alterations should

be effective for purposes of federal immigration law.

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Aliens convicted of crimes in state court may face immigration

consequences based on the nature of the conviction and the length of the

resulting sentence. To avoid these consequences, some aliens seek

state-court orders retroactively vacating the conviction or altering the

sentence. At present, the Board of Immigration Appeals (“Board”) has

adopted three different tests to determine the legal effect of such state-court

orders, depending upon how the state court describes its decision.

If the order “vacates” an alien’s conviction, then the order has legal effect

if based on “a procedural or substantive defect in the underlying

proceedings,” but not if based on reasons “unrelated to the merits” such as

“rehabilitation or immigration hardships.” Matter of Pickering, 23 I&N Dec.

621, 624 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465

F.3d 263 (6th Cir. 2006). If the order “modifies” an alien’s sentence, then

the modification is given “full . . . faith and credit” for immigration purposes

regardless of the reason. Matter of Cota-Vargas, 23 I&N Dec. 849, 850–52

(BIA 2005); see also Matter of Song, 23 I&N Dec. 173 (BIA 2001). Finally,

if the order “clarifies” an alien’s sentence, then an immigration judge

assessing the order’s effect considers several characteristics of the order,

such as whether the original sentencing order contained an obvious

discrepancy and whether the clarifying court had jurisdiction to enter the

order. Matter of Estrada, 26 I&N Dec. 749, 755–56 (BIA 2016). Adding to

the confusion, the classification of a state-court order as a modification or

clarification may turn on how the state court itself labels the order, not on

any objective distinctions between the two categories.

The tests articulated in Matter of Cota-Vargas, Matter of Song, and

Matter of Estrada have no basis in the text of the Immigration and

Nationality Act (“INA”), promote inconsistency in the application of the

country’s immigration laws, and fail to advance Congress’s intent to attach

immigration consequences to certain convictions and sentences.

Accordingly, those cases are overruled. Going forward, immigration courts

should apply the test articulated in Matter of Pickering in determining the

immigration consequence of any change in a state sentence, no matter how

the state court describes its order. Such an alteration will have legal effect

for immigration purposes when based on a procedural or substantive defect

in the underlying criminal proceeding, but not when the change was based

on reasons unrelated to the merits, such as the alien’s rehabilitation or an

interest in avoiding an immigration consequence.

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I.

A.

Congress has provided that an alien’s conviction for certain serious

crimes, which result in a sentence of imprisonment of sufficient length, shall

have consequences for an alien’s immigration status. Notably, the INA

defines an “aggravated felony” to include a “crime of violence” for which

“the term of imprisonment [is] at least one year,” see 8 U.S.C.

§ 1101(a)(43)(F), and an alien convicted of an aggravated felony is ineligible

for most forms of relief or protection from removal, see, e.g., id.

§ 1227(a)(2)(A)(iii). In many cases, after the Department of Homeland

Security (“DHS”) commences removal proceedings against a criminal alien,

the alien petitions a state court to alter the conviction or resulting sentence.

An alien facing removal as an aggravated felon, for example, may ask the

state court to vacate the underlying conviction entirely, or to modify, clarify,

or otherwise alter the associated sentence so that it falls below the one-year

term of imprisonment necessary to qualify as an “aggravated felony.” The

state court’s order may have no actual impact on the alien under state law—

in most cases, the alien has already served the term of imprisonment he seeks

to alter. The sole issue then is the impact that the conviction has under the

immigration laws.

Under existing Board precedent, the immigration consequences of such a

state-court order depend on the precise form of relief granted by the court.

First, if the state court vacates the alien’s conviction, then the Board applies

the test set forth in Matter of Pickering, 23 I&N Dec. 621. In Pickering, the

Board concluded that there is a “significant distinction” between vacaturs

based on a “procedural or substantive defect in the underlying proceedings,”

and those based on “post-conviction events, such as rehabilitation or

immigration hardships.” Id. at 624. The former circumstance calls into

question whether the original conviction was valid, but the latter does not.

Hence, under Pickering, “if a court with jurisdiction vacates a conviction

based on a defect in the underlying criminal proceedings, the respondent no

longer has a ‘conviction’ as that term is defined in the INA. If, however, a

court vacates a conviction for reasons unrelated to the merits of the

underlying criminal proceedings, [then] the respondent remains ‘convicted’

for immigration purposes.” Id.

By contrast, if the state court modifies the alien’s sentence, rather than

vacating the alien’s conviction, then the Board follows the rule set forth in

Matter of Song, 23 I&N Dec. at 173–74, and Matter of Cota-Vargas, 23 I&N

Dec. at 851–52. Under those decisions, the immigration judge will

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automatically give full faith and credit to the state court order, regardless of

the reason for the modification. In Matter of Song, the respondent was

originally sentenced to a term of imprisonment of one year, but subsequently

petitioned a state court to resentence him to a term of imprisonment of 360

days. 23 I&N Dec. at 173–74. Finding the situation analogous to one where

a state court had deemed the alien’s initial sentence “to have been illegal”

and thus regarding it “as void and of no force and effect,” see Matter of

Martin, 18 I&N Dec. 226, 227 (BIA 1982), the Board concluded that “the

offense no longer [fell] within the definition of an ‘aggravated felony’ in [the

INA], and the respondent [was] not removable.” Matter of Song, 23 I&N

Dec. at 174. Elaborating upon that reasoning in Matter of Cota-Vargas, the

Board, over a dissent, held that “a modified or reduced sentence is recognized

as valid for purposes of the immigration law without regard to the trial court’s

reasons for effecting the modification or reduction.” 23 I&N Dec. at 849.

Finally, if the state court “clarifies” an alien’s sentence, then the Board

considers the characteristics of the order discussed in Matter of Estrada,

26 I&N Dec. 749. There, the respondent initially had received a

twelve-month sentence, but it was not clear whether the sentence was for

“probation” or for a “probated term of imprisonment”—only the latter of

which would have counted as a term of imprisonment under the INA. The

respondent successfully petitioned the state court to “[c]larify[]” that the

sentence was solely for probation. See id. at 755. In deciding whether to

give effect to the order, the Board considered several characteristics

previously identified as relevant by the Eleventh Circuit. See id. (citing

Herrera v. U.S. Att’y Gen., 811 F.3d 1298 (11th Cir. 2016); United States

v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013)). These characteristics

include whether the original sentencing order contained an obvious

discrepancy; whether the original judge was the same as the clarifying judge;

whether a significant period of time had passed between the original

sentencing and the clarification; and whether the clarifying court had

jurisdiction to enter the clarification. Id. at 755–56. The Board then observed

that, in the case before it, the alien’s original sentencing order was

legitimately unclear and the clarifying order had been issued by the same

judge who had initially sentenced the alien. Id. For these reasons, the Board

gave effect to the order and concluded that the alien was not removable. Id.

at 756.

Taken together, these Board decisions establish three distinct tests

governing the immigration consequences of state-court orders that

retroactively alter a criminal conviction or sentence. These tests are

inconsistent with each other, and they cause similarly situated aliens to

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experience disparate outcomes under the immigration laws. The two cases

in this matter demonstrate this inconsistency.

B.

1.

In Matter of Michael Vernon Thomas, the respondent, a citizen of

Trinidad and Tobago, had been living in the United States as a lawful

permanent resident since 1977. In 2001, a Georgia state court convicted

Thomas of family violence battery, see Ga. Code Ann. § 16-5-23.1(f), and

sentenced him to a term of imprisonment of twelve months. In 2016, DHS

charged Thomas as removable as an aggravated felon because he had been

convicted of a “crime of violence” for which the “term of imprisonment

[was] at least one year.” See 8 U.S.C. § 1101(a)(43)(F). Thomas conceded

before an immigration judge that his conviction constituted grounds for

removal, and the immigration judge ordered Thomas removed.

While Thomas’s appeal was pending, he petitioned a Georgia state court

to alter his criminal sentence. Thomas did not allege any procedural or

substantive defect in the original criminal proceeding, which occurred over

fifteen years before, but upon the consent of the prosecution, the state court

issued an order stating, “Defendant’s sentence in the above matter is hereby

clarified to reflect that Defendant was sentenced to a cumulative term of

11 months and 28 days of probation.” The Board then remanded for the

immigration judge to review the impact of the consent order.

The immigration judge declined to credit the order, and the Board

affirmed. Because the order “clarified” Thomas’s sentence, the Board

considered the characteristics of the order identified as relevant in Matter of

Estrada. The Board observed that—in contrast to the situation of the alien

in that case—Thomas’s original sentencing order was clear; a significant

period of time (approximately fifteen years) had passed between the original

sentence and the clarification; and the state-court judge clarifying the

sentence differed from the original sentencing judge. The Board thus

declined to credit the “clarification” of Thomas’s sentence, and he was

deemed removable.

2.

In Matter of Joseph Lloyd Thompson, the respondent, a citizen of

Jamaica, was lawfully admitted to the United States in 1987. In 2012, a

Georgia state court convicted Thompson of family violence battery, see Ga.

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Code Ann. § 16-5-23.1(f), and sentenced him to a term of imprisonment of

twelve months. As with Thomas, in 2017, DHS charged Thompson as

removable as an aggravated felon, because had had been convicted of a

“crime of violence” for which the “term of imprisonment [was] at least one

year.” See 8 U.S.C. § 1101(a)(43)(F).

In March 2018, while the removal charges were pending, Thompson filed

a “Motion to Modify Sentence” in Georgia state court seeking to reduce his

sentence to eleven months and twenty-seven days. Thompson did not

identify any defect in the original criminal proceeding, but the court granted

the motion the same day. Before the immigration judge, Thompson admitted

that he had been convicted of a crime of violence, yet argued that his

modified sentence did not amount to a term of imprisonment of at least one

year.

After the immigration judge rejected Thompson’s argument, the Board

reversed on appeal. The Board acknowledged that there were questions

concerning whether the Georgia state court had jurisdiction to issue the order

and that the timing of the order suggested that it may have been issued to

affect the immigration court proceeding. But under Matter of Cota-Vargas,

the Board concluded that it must “give full effect” to the modified sentence.

Thus, in contrast with Matter of Thomas, the Board gave effect to the post-

sentencing state-court order and concluded that Thompson was no longer

removable.

3.

Both Thomas and Thompson were convicted of the same state law

offense, were charged with removability on the same ground, and petitioned

the state courts to alter their sentences without alleging any procedural or

substantive defects in the original proceeding. Yet these similarly situated

aliens faced markedly divergent consequences. Relying on a semantic

distinction between a “clarification” and a “modification,” the Board found

that Thomas was removable but Thompson was not. I certified these cases

to address these inconsistencies and to clarify the appropriate treatment under

the INA. See 27 I&N Dec. 556 (A.G. 2019). 1

1

After I certified these cases for my review, Thomas filed a “Motion for Production”

asserting that the Due Process Clause entitles him to a chance to respond to any “briefing,

memoranda, or other documents” that might influence the decision in his case. The motion

is denied. Thomas has received DHS’s briefs in these matters, and he had a full and fair

opportunity to raise his own arguments and respond to any other party’s arguments through

his own initial and reply brief.

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II.

The INA assigns clear immigration consequences to an alien who has

been convicted and sentenced for a state crime, yet the Board has adopted

multiple tests that permit state courts to change those results well after the

fact. Although a state court may alter a state conviction for appropriate

reasons under state law, the state court does not have the authority to make

immigration-law determinations. In view of these considerations, I conclude

that the Pickering test should apply to state-court orders that modify, clarify,

or otherwise alter the term of imprisonment or sentence associated with a

state-court conviction. As a result, such alterations will have legal effect for

immigration purposes if they are based on a procedural or substantive defect

in the underlying criminal proceeding, but not if they are based on reasons

unrelated to the merits, such as rehabilitation or immigration hardship.

Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore

be overruled.

A.

1.

In considering whether a state-court order that modifies, clarifies, or

otherwise alters a “term of imprisonment or a sentence” should change the

immigration consequences of the original sentence, we begin with the text of

the statute. E.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The INA

defines “conviction” and a “term of imprisonment or a sentence” as follows:

(A) The term “conviction” means, with respect to an alien, a formal

judgment of guilt of the alien entered by a court or, if adjudication of

guilt has been withheld, where—

(i) a judge or jury has found the alien guilty or the alien has

entered a plea of guilty or nolo contendere or has admitted sufficient

facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty to be imposed.

(B) Any reference to a term of imprisonment or a sentence with respect

to an offense is deemed to include the period of incarceration or

confinement ordered by a court of law regardless of any suspension of

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the imposition or execution of that imprisonment or sentence in whole

or in part.

8 U.S.C. § 1101(a)(48) (emphasis added). An alien plainly has been

convicted under the INA when a court has entered “a formal judgment of

guilt,” and he has received a sentence when the court orders a “period of

incarceration or confinement,” no matter whether that sentence is executed.

The question then is whether the state court’s subsequent alteration of a

“conviction” or a “sentence” changes those facts under the INA. Neither the

INA nor the associated regulations provide further guidance on this point,

but the statute’s history helps illuminate the meaning of the phrase. Congress

amended the INA to define “conviction” following the Board’s decision in

Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). There, the Board established

a rule that “a conviction will be found for immigration purposes” where:

(1) a judge or jury has found the alien guilty or he has entered a plea of

guilty or nolo contendere or has admitted sufficient facts to warrant a

finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or restraint

on the person’s liberty to be imposed (including but not limited to

incarceration, probation, a fine or restitution, or community-based

sanctions such as a rehabilitation program, a work-release or

study- release program, revocation or suspension of a driver’s license,

deprivation of nonessential activities or privileges, or community

service); and

(3) a judgment or adjudication of guilt may be entered if the person

violates the terms of his probation or fails to comply with the

requirements of the court’s order, without availability of further

proceedings regarding the person’s guilt or innocence of the original

charge.

Id. at 551–52. Under Ozkok’s definition of “conviction,” “it was possible for

a defendant to plead nolo contendere, obtain a suspended sentence, or enter

a rehabilitation program on probation—so long as the court stopped short of

a formal adjudication of guilt—without having the offense be considered a

conviction for purposes of immigration laws.” Francis v. Gonzales, 442 F.3d

131, 140 (2d Cir. 2006). Applying this definition “required an individualized

analysis of the particular procedures of different state penal systems to

determine whether a person had been ‘convicted.’” Id.

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Congress rejected the third element of Ozkok in enacting 8 U.S.C.

§ 1101(a)(48) as part of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”). The statute incorporated the first

two elements of Ozkok’s definition of “conviction,” but eliminated the third,

which had excluded certain suspended sentences. See Pub. L. No. 104-208,

div. C, § 322, 110 Stat. 3009, 3009-546, 3009-628 (1996); see also H.R. Rep.

No. 104-828, at 224 (Conf. Rep. 1996) (confirming this textual interpretation

by observing that the IIRIRA “broaden[ed] the scope of the definition of

‘conviction’ beyond that adopted by the Board of Immigration Appeals in

Matter of Ozkok,” which had not gone “far enough to address situations

where a judgment of guilt or imposition of sentence [was] suspended.”);

Francis, 442 F.3d at 141 (collecting cases acknowledging “that in enacting

IIRIRA, Congress specifically and deliberately abrogated the Ozkok test”).

In enacting section 1101(a)(48), Congress made clear that immigration

consequences should flow from the original determination of guilt. In

addition, Congress ensured uniformity in the immigration laws by avoiding

the need for immigration judges to examine the post-conviction procedures

of each State. See Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir. 2007)

(“Interpreting the new definition, the BIA identified two primary aims that it

believed Congress sought to accomplish: to focus the conviction inquiry on

the ‘original determination of guilt’ and to ‘implement a uniform federal

approach.’” (quoting Matter of Roldan–Santoyo, 22 I&N Dec. 512, 521–22

(BIA 1999)); Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st Cir. 2000)

(explaining the “emphasis that Congress placed on the original admission of

guilt” when enacting the new definition of “conviction” (emphasis in

original)); id. at 305 (explaining that Matter of Ozkok “failed to produce . . .

uniformity and Congress stepped in to fill the void”); see also, e.g.,

Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262, 1270 (11th Cir. 2004).

This statutory history confirms that, under paragraph (A), an alien’s

original adjudication or admission of guilt establishes the fact of his

“conviction.” The remainder of the definition, paragraph (B), similarly

contains language making clear that the length of a “term of imprisonment

or a sentence” is calculated “regardless of any suspension of the imposition

or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C.

§ 1101(a)(48)(B) (emphasis added). The length of a sentence for

immigration purposes thus ignores “suspensions” (whether occurring at the

time of sentencing or thereafter), suggesting that other post-sentencing

events—such as modifications or clarifications—should not be relevant

under the immigration laws. Accordingly, the phrase “term of imprisonment

or a sentence” in paragraph (B) is best read to concern an alien’s original

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criminal sentence, without regard to post-sentencing alterations that, like a

suspension, merely alleviate the impact of that sentence.

This reasoning, which supports the Pickering test, should likewise extend

to all state-court modifications, clarifications, and other alterations of a

criminal sentence. If the original sentence was altered because of a legal

defect, then the sentence was not legally effective, and there is no valid

sentence to which immigration consequences can attach. The original

sentence—because of the defect—should not have been entered in the first

place. If, in contrast, a state court later alters an earlier sentence for

rehabilitative or immigration reasons, then the immigration consequences of

that sentence under section 1101(a)(48) remain unchanged because section

1101(a)(48) addresses the alien’s original term of imprisonment or sentence.

See Saleh, 495 F.3d at 24 (explaining that “Congress did not intend to allow

an alien to escape [immigration] consequences by means of a state vacatur

that was not on the merits”).

Said differently, Congress has determined that an alien who is convicted

of a crime that is sufficiently serious to warrant a significant sentence should

be subject to removal. Later alterations to that sentence that do not correct

legal defects, do not change the underlying gravity of the alien’s action. They

accordingly do not affect Congress’s judgment as to whether that alien

should be removed. Such an alteration therefore should have no effect for

purposes of the immigration laws. Cf. id. at 25 (“When a conviction is

amended nunc pro tunc solely to enable a defendant to avoid immigration

consequences, in contrast to an amendment or vacatur on the merits, there is

no reason to conclude that the alien is any less suitable for removal.”).

Applying the Pickering test to all sentence alterations thus ensures that aliens

who have committed significant crimes, as identified by Congress, do not

later avoid the immigration consequences of those actions.

Furthermore, the application of a single test to state-court sentence

alterations promotes uniformity in the law. In the cases currently under

review, for example, applying the Pickering test should avoid the

inconsistent results that apply to the two similarly situated respondents. If

neither state court altered the respondent’s sentence on the basis of “a

procedural or substantive defect in the underlying proceedings,” see

Pickering, 23 I&N Dec. at 624, then the Pickering test would dictate the same

immigration consequence for both respondents.

In addition, applying the Pickering test to all forms of state-court sentence

alterations resolves inconsistencies among the states’ “crazy quilt of . . .

widely disparate state rehabilitative and diversionary arrangements.”

Herrera-Inirio, 208 F.3d at 305; see also, e.g., Pinho v. Gonzales, 432 F.3d

193, 205 (3d Cir. 2005) (observing that the Board in the past has been

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“bedeviled by the diversity of state rehabilitative programs and the resulting

difficulty in fashioning a uniform national immigration policy”);

Resendiz-Alcaraz, 383 F.3d at 1269 (noting “the vagaries of state law”

related to the alteration of a conviction). The Pickering test eliminates the

need to assess this broad array of state procedures. If the state court alters

the alien’s sentence because of a procedural or substantive defect in the

original proceeding, then the alteration has legal effect—regardless of the

label the state court placed on the order. If the state court alters an alien’s

sentence on the basis of something other than a procedural or substantive

defect, then the alteration has no effect and the immigration judge need

inquire no further. Moreover, similarly situated aliens in different states will

face similar consequences. Whether one state affords more or less generous

mechanisms for altering a sentence for rehabilitative purposes will be

irrelevant. Only those alterations based on legal defects will receive effect.

The country’s immigration system will thereby achieve more uniform

results.

2.

In reaching this conclusion, I have considered the Board’s reasons for

adopting the Cota-Vargas and Estrada tests, but I find them unpersuasive.

In Matter of Song, the Board offered little analysis before giving full effect

to state-court modifications, and it did not ground that rule in any facet of the

text of the INA. See 23 I&N Dec. 173. In Matter of Cota-Vargas, the Board

acknowledged that the “language and purpose of section 101(a)(48)(A)”

support applying the Pickering rule to sentence alterations, see 23 I&N Dec.

at 852, but found it relevant that paragraph (B) addresses “suspensions” and

not “modifications.” Based upon this statutory silence, the Board inferred a

congressional intent to credit state-court modifications that were unrelated to

the merits of a criminal proceeding. See id. Yet paragraph (A)’s definition

of “conviction” is equally silent about “vacaturs,” and the Board nonetheless

determined in Matter of Pickering that vacaturs unrelated to the merits will

not have immigration consequences. See 23 I&N Dec. at 624. Paragraph

(A) and paragraph (B) simply do not address vacaturs, modifications, or

clarifications. This silence, however, provides no reason to depart from

Congress’s focus on the alien’s original conviction and sentence in either of

those provisions.

I likewise do not believe that the Estrada test finds any more support in

the INA. There, the Board considered a number of characteristics in

assessing the effect of a clarification, yet none of them flows directly from

the text of the INA itself, see 26 I&N Dec. 755–56, and reliance on such

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varied considerations does not promote uniformity, cf. Hertz Corp. v. Friend,

559 U.S. 77, 91–92 (2010) (observing that “highly general multifactor

tests . . . [had] failed to achieve a nationally uniform interpretation of federal

law”). Moreover, the Estrada test may give effect to state-court clarifications

that do not call into question the validity of a criminal alien’s original

sentence. For example, the opinion in Estrada suggests that a “clarification”

entered shortly after the original sentence by the same judge who issued the

sentence could be given effect for immigration purposes, see 26 I&N Dec.

755–56, even if the alien who sought the clarification did so just to avoid

immigration consequences. The Estrada test thus undermines Congress’s

decision to attach immigration consequences to sentences of a certain length.

B.

In extending the Pickering test to all forms of sentence alterations, I have

also considered and rejected several additional arguments pressed by the

respondents.

1.

The respondents first argue that requiring immigration judges to assess

the reasons that a state court altered a criminal alien’s sentence would require

them to act as fact-finders in matters of state criminal law with which they

have little familiarity. The Pickering test, however, already requires

immigration judges to assess the administrative record and make

determinations about the reasons that certain state-court orders were entered.

See 23 I&N Dec. at 625 (examining “the law under which the

[post-conviction] court issued its order,” “the terms of the order itself,” and

“the reasons presented by the respondent in requesting that the court vacate

the conviction”). The extension of the Pickering test to state-court sentence

alterations raises no new concerns about the role of immigration judges in

assessing the record.

Moreover, the evidence on which immigration judges will rely when

assessing state-court sentence alterations will typically be readily available

in the record and should require little interpretation of state law. The

application of the Pickering test demonstrates as much, as adjudicators

applying it frequently determine whether a vacatur is valid for immigration

purposes by assessing the text of the order of vacatur itself or the alien’s

motion requesting the vacatur. See, e.g., Al-Najar v. Mukasey, 515 F.3d 708,

716 (6th Cir. 2008) (declining to give effect to a vacatur because of “the

absence of any substantive legal basis cited in [the alien’s] motion”); Sanusi

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v. Gonzales, 474 F.3d 341, 347 (6th Cir. 2007) (declining to give effect to a

vacatur because “[a] colorable legal ground for the granting of a writ of

coram nobis was not raised in [the alien’s] state court petition”); Alim

v. Gonzales, 446 F.3d 1239, 1251 (11th Cir. 2006) (giving effect to a vacatur

after examining the “state court order” and the alien’s “coram nobis petition”

to determine “the reason underlying the state court’s decision to vacate” the

conviction). The availability of such evidence thus indicates that

immigration judges should not need to wade into the intricacies of state

criminal law in applying this opinion’s rule.

2.

The respondents next contend that the Full Faith and Credit Act,

28 U.S.C. § 1738 (the “Act”), requires that immigration judges and the Board

give effect to state-court alterations of a criminal sentence, regardless of the

reasons for that alteration. The respondents contend that Matter of

Cota-Vargas supports this argument because, although that decision did not

cite the Act, it concluded that a state court’s “decision to modify or reduce

an alien’s criminal sentence nunc pro tunc is entitled to full faith and credit

by the Immigration Judges and the Board of Immigration Appeals.” 23 I&N

Dec. at 849 (emphasis added). This argument fails for two independent

reasons.

First, Congress may define terms such as “conviction” for the purposes

of federal law in a way that differs from the definition attached to such terms

by state courts. Thus, in deciding whether a vacated conviction remains

effective for immigration purposes, an immigration judge or the Board

merely applies and upholds the definition of conviction in the INA. The

adjudicator is not reevaluating or otherwise questioning the validity of the

state-court judgment. The adjudicator accordingly does not violate the Full

Faith and Credit Act. See Saleh, 495 F.3d at 26 (“[T]he BIA is simply

interpreting how to apply Saleh’s vacated State conviction for receiving

stolen property to the INA and is not refusing to recognize or relitigating the

validity of Saleh’s California state conviction. The full faith and credit

statute is not thereby violated.”); Herrera-Inirio, 208 F.3d at 307 (“Neither

the Full Faith and Credit Clause nor the statutory overlay ‘purports to prevent

federal legislative authorities from writing federal statutes that differ from

state statutes or from attaching, to words in a federal statute, a meaning that

differs from the meaning attached to the same word when used in a statute

enacted by a state.’” (quoting Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992)

(Breyer, J.))).

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The same reasoning applies to sentence alterations. In applying the

Pickering test to these state-court orders, the immigration judge is simply

determining the meaning of the phrase “term of imprisonment or a sentence”

in the INA for the purpose of enforcing federal immigration law. Hence, for

the same reason that interpreting the term “conviction” in accordance with

the Pickering test “does not infract applicable principles of full faith and

credit,” see Herrera-Inirio, 208 at 307, applying the Pickering test to the

phrase “term of imprisonment or a sentence” likewise does not implicate,

much less violate, the Full Faith and Credit Act.

The respondents attempt to avoid this result on the ground that Matter of

Pickering’s interpretation of “conviction” is required by paragraph (A) of

8 U.S.C. § 1101(a)(48), whereas paragraph (B) does not mandate a similar

result for the phrase “term of imprisonment or a sentence.” As discussed

above, however, I believe that the text and history of this provision suggest

that the two paragraphs are properly construed together, such that paragraph

(A)’s focus on the original criminal proceeding requires paragraph (B) to be

similarly interpreted. Moreover, just as paragraph (B) does not specifically

address the effect of state-court “modifications,” “clarifications,” or other

alterations of a sentence, paragraph (A) does not specifically address the

effect of state-court “vacaturs” of a conviction. Both paragraphs, in other

words, are silent on the effect of state-court orders, so there is no express

textual basis for differentiating between the paragraphs in deciding whether

to apply the Full Faith and Credit Act.

The respondents’ argument also fails for the second reason that the Full

Faith and Credit Act does not apply to federal agencies. By its own terms,

that statute provides that “[a]cts, records and judicial proceedings . . . shall

have the same full faith and credit in every court within the United States and

its Territories and Possessions as they have by law or usage in the courts of

such State, Territory or Possession from which they are taken.” 28 U.S.C.

§ 1738 (emphasis added). The text of the Act is thus clear: it applies to

“courts”—but not to “agencies”—and does not require agency officials such

as immigration judges or the Board to give effect to state-court orders. See

Perez v. Cissna, 914 F.3d 846, 857 (4th Cir. 2019) (“[T]he Act does not apply

to agencies. The text of the Act is clear. . . . The [United States Citizenship

and Immigration Services (“USCIS”)] is not a court. Thus, the plain

language of 28 U.S.C. § 1738 establishes that it does not apply to [USCIS].”);

see also Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 799 (5th Cir.

2000) (explaining that the “plain language of [the Act] establishes that it does

not apply” to an agency); N.L.R.B. v. Yellow Freight Sys., Inc., 930 F.2d 316,

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320 (3d Cir. 1991) (holding that “federal administrative agencies are not

bound by section 1738 because they are not ‘courts’”). 2

The foregoing observations also dispose of the respondents’ broader

argument that—even apart from the Act—an immigration judge’s

assessment of state-court sentence alterations would contravene principles of

federalism and comity. Contrary to respondent Thompson’s argument, an

immigration judge’s evaluation of the reasoning behind a state-court

alteration of an alien’s sentence does not “arrogate” to the federal

government “the power to determine the effectiveness of state court orders.”

Instead, as explained above, the immigration judge in such a case simply

determines the effect of that order for the purposes of federal immigration

law. See Matter of Velasquez-Rios, 27 I&N Dec. 470, 474 (BIA 2018) (“We

must use Federal law, rather than State law, to determine the immigration

consequences of [a] respondent’s . . . conviction.” (emphases in original)).

The state-court order itself remains effective and unchallenged for all other

purposes, and there accordingly exists no intrusion on state law of the sort

that principles of federalism and comity are designed to prevent.

3.

The respondents finally argue that, in determining the impact that a

state-court alteration of a sentence should have on the immigration laws, the

Attorney General should proceed through rulemaking rather than

adjudication. But given that the Board itself adopted its prior tests precisely

in the context of administrative adjudications, I do not believe that there is a

need for a regulation here. Indeed, Supreme Court precedent confirms my

authority as agency head to proceed by adjudication, and my authority here

derives from the text of the relevant provisions in the INA.

The Supreme Court has long recognized that agencies may decide

whether to announce reinterpretations of a statute through rulemaking or

through adjudication. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294

(1974) (“[T]he choice between rulemaking and adjudication lies in the first

2

Two Board opinions suggest that 28 U.S.C. § 1738 nonetheless applies to federal

agencies. See Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006) (“In the absence of a

statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full

faith and credit to this State court judgment.”); Matter of Rodriguez-Ruiz, 22 I&N Dec.

1378, 1380 (BIA 2000) (“We will instead accord full faith and credit to this state court

judgment. See 28 U.S.C. § 1738.”). The plain text of the statute and the federal court

precedent cited above indicate that these cases were wrongly decided. These cases

accordingly are overruled to the extent that they suggest that the Full Faith and Credit Act

applies to proceedings before immigration judges and the Board.

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instance within the [agency’s] discretion.”); see also Velasco-Giron

v. Holder, 773 F.3d 774, 779 (7th Cir. 2014) (explaining that agencies “can

choose freely between rules and standards, between rulemaking and

adjudication”); Gao v. Holder, 595 F.3d 549, 556 (4th Cir. 2010) (“[I]t is a

basic principle of administrative law that ‘the choice made between

proceeding by general rule or by individual, ad hoc litigation is one that lies

primarily in the informed discretion of the administrative agency.’” (quoting

SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). Indeed, in the decades

since Bell Aerospace, the Supreme Court “has not even suggested that a court

can constrain an agency’s choice between rulemaking and adjudication.’”

Velasco-Giron, 773 F.3d at 779 (emphasis added) (quoting Richard J. Pierce,

Jr., I Administrative Law Treatise § 6.9 at 510 (5th ed. 2010)). And agencies

retain their discretion even when announcing interpretations that may

conflict with prior decisions. See Chisholm v. F.C.C., 538 F.2d 349, 364

(D.C. Cir. 1976) (“[A]n administrative agency is permitted to change its

interpretation of a statute, especially where the prior interpretation is based

on error, no matter how longstanding.”); see also id. at 365 (“The original

interpretation of the [statute] was . . . established by adjudication; thus

reversal by adjudication seems particularly appropriate here.”). I accordingly

conclude that it is appropriate to address these Board precedents in the

context of an administrative adjudication, and there is no legal requirement

to do so by regulation.

C.

Finally, although I did not request briefing on the subject, the parties to

this case have addressed which side should carry the burden of proof when it

comes to establishing the state court’s reason for altering a sentence under

the Pickering test. The Board and the courts of appeals have considered this

issue in applying Matter of Pickering to vacaturs of convictions, and they

have allocated the burden in different ways, depending on the procedural

posture of the case at hand. See, e.g., Andrade-Zamora v. Lynch, 814 F.3d

945, 949 (8th Cir. 2016) (the alien bears the burden to prove that a conviction

was vacated because of a procedural or substantive defect when applying for

cancellation of removal); Barakat v. Holder, 621 F.3d 398, 403–04 (6th Cir.

2010) (the government bears the burden to prove that a conviction was

vacated for reasons other than a procedural or substantive defect when

seeking to establish that an alien is removable); Rumierz v. Gonzales, 456

F.3d 31, 37 (1st Cir. 2006) (the alien bears the burden to prove that a

conviction was vacated because of a procedural or substantive defect when

seeking to reopen removal proceedings).

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The courts of appeals have sometimes invoked a burden-shifting

framework to describe the burden of proof, e.g., Barakat, 621 F.3d at 403

(describing how “the burden of production may shift during removal

proceedings”), but regardless of how the issue is described, the bottom line

remains the same: When the government alleges that an alien is deportable,

the government bears the burden of proving deportability by clear and

convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). And when an alien applies

for relief from removal, the alien bears the burden to prove that he meets the

eligibility requirements for the specific form of relief requested. Id.

§ 1229a(c)(4). After all of the evidence has been proffered by the parties,

the immigration judge must weigh that evidence and determine whether the

party bearing the burden of proof has carried its burden.

The parties to this appeal dispute how these principles should apply in the

context of sentence alterations, but I did not request briefing on this issue.

See 27 I&N Dec. 556. In the absence of such a request, I decline to address

the burden-shifting issue anew and thus leave undisturbed the existing body

of law applying the Pickering test.

III.

For the reasons explained, the Board’s decisions in Matter of

Cota-Vargas, Matter of Song, and Matter of Estrada are overruled. The tests

described in those cases will no longer govern the immigration-related

effects of state-court orders that modify, clarify, or otherwise alter a criminal

alien’s sentence. Instead, such state-court orders will be given effect for

immigration purposes only if based on a procedural or substantive defect in

the underlying criminal proceeding. These orders will have no effect for

immigration purposes if based on reasons unrelated to the merits of the

underlying criminal proceeding, such as rehabilitation or the avoidance of

immigration consequences.

Because the Board’s decisions in Matter of Michael Vernon Thomas and

Matter of Joseph Lloyd Thompson were based on these earlier precedents,

I vacate the Board’s decisions below and remand these cases to the Board to

assess the state-court alterations in light of the Pickering test. I do not doubt

that it would be the rare case where a state court’s alteration of an old

sentence by three or four days (as in respondents’ cases) would reflect a

necessary remedy for a fundamental legal defect, rather than an exercise of

the trial judge’s sentencing discretion. But insofar as the parties litigated

these cases under the earlier precedents, I do not wish to foreclose any

available arguments in that regard. On remand, the Board may review the

evidence in the record, and consider any appropriate requests to reopen the

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record, to determine whether the state-court alterations in each of these cases

arose as a result of a procedural or substantive defect, or for some other

reason.

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