“In this regard, we note that the respondent was a direct party to the criminal proceeding leading to the vacation of his conviction and is therefore in the best position to know why the conviction was vacated and to offet evidence related to the record of conviction.”
How later courts described this case
- “In this regard, we note that the respondent was a direct party to the criminal proceeding leading to the vacation of his conviction and is therefore in the best position to know why the conviction was vacated and to offet evidence related to the record of conviction.”
Written by the judges who cited it.
The opinion
Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578
In re Gildardo CHAVEZ-Martinez, Respondent
File A37 731 348 - Chicago
Decided August 31, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien 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.
(2) Where the respondent presented no evidence to prove that his conviction was not vacated
solely for immigration purposes, he failed to meet his burden of showing that his motion
to reopen should be granted.
FOR RESPONDENT: Maria Gloria Najera, Esquire, Addison, Illinois
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lynn K. Hollander, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU and PAULEY, Board Members; M. C. GRANT,
Temporary Board Member.
M. C. GRANT, Temporary Board Member:
This case was last before us on January 3, 2007, when we affirmed the
Immigration Judge’s September 2, 2005, decision denying the respondent’s
applications for cancellation of removal under section 240A(a) of the
Immigration Nationality Act, 8 U.S.C. § 1229b(a) (2000), and voluntary
departure, and ordering him removed from the United States. The respondent
has now filed a motion to reopen seeking to show that he is no longer
removable. The respondent’s motion will be denied.
The respondent is a native and citizen of Mexico who was admitted to the
United States as an immigrant on April 1, 1983. On November 30, 2001,
removal proceedings were commenced against the respondent as a
consequence of his Illinois conviction for the offense of criminal sexual abuse.
An Immigration Judge ordered the respondent removed on January 31, 2002.
During the pendency of the respondent’s appeal, he filed a motion to
remand, alleging that his underlying conviction had been vacated and that he
had been resentenced to simple battery. On May 30, 2002, we granted the
respondent’s motion. On remand, the Immigration Judge asked the parties for
272
Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578
evidence establishing the reason that the respondent’s sexual abuse conviction
had been vacated. The Immigration Judge granted the respondent multiple
continuances, but no additional evidence was ever provided. In his
September 2, 2005, decision, the Immigration Judge determined that the
respondent had not presented evidence demonstrating that his conviction for
sexual abuse was vacated as a result of a procedural or substantive defect in the
underlying criminal proceedings. He therefore concluded that it remained
valid for immigration purposes, rendering the respondent ineligible for
cancellation of removal.
On January 3, 2007, we dismissed the respondent’s appeal. The respondent
filed the instant motion, requesting that we reopen the proceedings based on
new law establishing that the Department of Homeland Security (“DHS”)
bears the burden of proving that a conviction has been vacated solely for
immigration reasons. See Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006)
(reversing Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)). We find that
reopening of the proceedings is not warranted. See 8 C.F.R. § 1003.2(c)(1)
(2007).
Contrary to the respondent’s assertion, there has not been a fundamental
change in the law regarding vacated convictions that warrants reopening of
proceedings. As a general rule, we give full faith and credit to State court
actions that purport to vacate an alien’s criminal conviction. Matter of
Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). Nonetheless, if a court
vacates an alien’s criminal conviction solely on the basis of immigration
hardships or rehabilitation, rather than on the basis of a substantive or
procedural defect in the underlying criminal proceedings, the conviction is not
eliminated for immigration purposes and will continue to serve as a valid
factual predicate for a charge of removability despite its vacatur. Matter of
Pickering, supra; see also Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005)
(deferring to our decision in Matter of Pickering and holding that a State
felony conviction remained valid for immigration purposes, even though it was
amended to a misdemeanor by the State court).
There is a conflict among the Federal circuit courts of appeals
regarding which party bears the burden of proving why a conviction has been
vacated in the context of a motion to reopen. See Nath v. Gonzales, 467 F.3d
1185, 1188-89 (9th Cir. 2006) (holding that the DHS bears the burden of
showing that an alien’s conviction remains valid for immigration purposes);
Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006) (holding that the alien
bears the burden of proving that a conviction was not vacated solely for
immigration reasons). The United States Court of Appeals for the Seventh
Circuit, the jurisdiction in which this case arises, has not ruled on which party
bears the burden of proving why a conviction has been vacated in the context
of a motion to reopen.
273
Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578
In this case, no evidence was ever submitted either before the Immigration
Judge or the Board to establish why the respondent’s conviction was vacated.
At this late stage of the proceedings, we find that the burden of proving why
the conviction was vacated is appropriately placed on the respondent as the
party seeking reopening. See INS v. Abudu, 485 U.S. 94 (1988); see also
Matter of Coelho, 20 I&N Dec. 464, 472-73 (BIA 1992) (holding that a party
who seeks a remand or reopening of the proceedings bears a “‘heavy burden’”
of demonstrating that if his motion to reopen were granted, the new evidence
would change the outcome of the case (quoting INS v. Abudu, supra, at 110)).
In this regard, we note that the respondent was a direct party to the criminal
proceeding leading to the vacation of his conviction and is therefore in the best
position to know why the conviction was vacated and to offer evidence related
to the record of conviction.1 However, he failed to submit any relevant
evidence, despite the multiple continuances granted by the Immigration Judge.
To the extent that the respondent relies on Pickering v. Gonzales, supra, we
find that it is not binding on the present matter, as it is a decision of the Sixth
Circuit. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (explaining
that the Board historically follows a court’s precedent in cases arising in that
circuit). Moreover, unlike Pickering v. Gonzales, this case involves a motion
to reopen rather than an appeal from a finding of removability. Therefore the
allocation of the burden of proof is different and the situation is
distinguishable.
Based on the foregoing, we conclude that an alien seeking to reopen
proceedings to establish that his conviction has been vacated bears the burden
of proving that the conviction was not vacated solely for immigration
purposes. Because the respondent has presented no evidence to prove that his
conviction was not vacated solely for immigration purposes, we find that he
failed to meet his burden of showing that reopening of the proceedings is
warranted. Accordingly, the respondent’s motion will be denied.
ORDER: The motion is denied.
1
We recognize that the respondent would be in a similar position in the context of
determining his removability, but we express no opinion as to the proper result in such a
case.
274