Rodriguez v. Attorney Gen. U.S.

• Decision Date: 19 December 2016
• Docket Number: No. 16-1354,16-1354
• Citation: 844 F.3d 392
• Parties: Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

844 F.3d 392

Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 16-1354

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1a November 18, 2016

Opinion Filed: December 19, 2016

Fabian Lima, Esq., 1500 Walnut Street, Suite 206, Philadelphia, PA 19102, Counsel for Petitioner

Juria L. Jones, Esq., Holly M. Smith, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Raul Rivas Rodriguez ("Rivas") petitions for review of the decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from an order of the Immigration Judge ("IJ") denying his motion to terminate removal proceedings and ordering him removed to the Dominican Republic. Because the conviction that served as a basis for his removal has been vacated, and the Notice of Removal did not specify his participation in a deferred adjudication program as a basis for removal, we will grant the petition.

I

Rivas, a native and citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident when he was two years old. In September 2013, following a bench trial in the Philadelphia Municipal Court, he was convicted of the purchase, receipt, and intentional possession of phencyclidine ("PCP"), and was sentenced to eighteen months' probation.

Following these convictions, the United States Department of Homeland Security initiated removal proceedings against Rivas and served him with a "Notice to Appear." A.R. 569-71. The Notice stated that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of two state law violations relating to a controlled substance.

Prior to his immigration hearing and after receiving this notice, Rivas petitioned the Municipal Court for relief from his convictions under the Pennsylvania Post Conviction Relief Act ("PCRA"). He argued that he received ineffective assistance of counsel because his trial counsel failed to advise him of the possible immigration consequences arising from his conviction and for advising him not to appeal the trial verdict. During the three-day PCRA hearing, Rivas's trial counsel testified that he advised Rivas of the immigration consequences flowing from a conviction and that he could not recall the advice he gave regarding an appeal but "probably would have advised [Rivas] that ... it is still not a winnable case...." A.R. 149. After the hearings, and at the request of the Commonwealth, the Municipal Court denied the PCRA petition and then, by agreement of the parties, vacated the guilty verdicts and placed Rivas on pretrial probation for three years as part of a deferred adjudication agreement. Included in the order vacating the judgment were conditions requiring Rivas to: (1) "stipulate to all of the Commonwealth's evidence in the underlying trial"; (2) reside in Pennsylvania; (3) report to court; (4) participate, if necessary, in employment training as well as drug testing and treatment; and (5) "agree that any violation of any of these conditions will result in a Negotiated Stipulated Trial." A.R. 120. The Commonwealth agreed to withdraw the charges if Rivas successfully completed his pretrial probation.

Rivas thereafter filed a motion to terminate his removal proceedings on the ground that his convictions, which constituted the basis for his potential removal, had been vacated. His motion also averred that "[t]he sentences have not been vacated solely to avoid the immigration consequences of his conviction." A.R. 128. The IJ denied Rivas's motion and ordered him removed to the Dominican Republic. The IJ found that since Rivas's trial counsel testified at the PCRA hearings that he did advise Rivas of the immigration consequences of an adverse judgment, and since the Municipal Court denied the PCRA petition, the IJ was "convinced that the primary and probably the only reason for the conviction vacatur was to permit the respondent to avoid the [i]mmigration consequences of his drug conviction." App. I 9-10.

The BIA agreed, finding that the Municipal Court vacated Rivas's convictions to allow him to avoid their immigration consequences. The BIA also found that even if Rivas's convictions had been vacated on substantive grounds, the terms of the order vacating the convictions still amounted to a "conviction" under the Immigration and Nationality Act ("INA"). Specifically, the BIA found that since Rivas stipulated to all of the state's evidence against him as part of the agreement vacating his convictions, and since his liberty was restrained under the resulting probation program, he remained "convicted" under immigration law and was removable. Consequently, the BIA affirmed the IJ's denial of Rivas's motion to terminate on two independent grounds. Rivas petitions for review.

II¹

Section 1227(a)(2)(B)(i) of the INA provides that "[a]ny alien who at any time after admission has been convicted of a violation of ... any law or regulation of a State ... relating to a controlled substance ... is deportable." The issue here is whether the disposition of Rivas's state court criminal proceedings render him "convicted" for purposes of the INA.²

A

A petitioner whose criminal conviction was vacated is no longer "convicted" under the INA where the conviction was vacated on the basis of a substantive or procedural defect in the underlying criminal proceedings. In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006). Conversely, where "a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings," such as for rehabilitation or to allow a petitioner to avoid the immigration effects of the conviction, then the petitioner "remains ‘convicted’ for immigration purposes." Id.; see alsoCruz v. Att'y Gen., 452 F.3d 240, 242 (3d Cir. 2006) (concluding that Pickering provides a reasonable interpretation of § 1227(a)(2)(B)(i) ); Pinho v. Gonzales, 432 F.3d 193, 208–10 (3d Cir. 2005) (same). A petitioner who seeks relief from removal bears the burden of proving that his conviction was vacated. 8 C.F.R. § 1240.8(d) ; Syblis v. Att'y Gen., 763 F.3d 348, 352 (3d Cir. 2014).

Rivas filed a motion for post-conviction relief based on alleged ineffective assistance of trial counsel. After three days of hearings, which included testimony from trial counsel, the Commonwealth agreed to a settlement pursuant to which Rivas's convictions were vacated. Although Rivas demonstrated that his convictions were vacated, the IJ and BIA concluded that Rivas failed to show they were vacated within the meaning of the immigration laws.

To determine whether a vacated conviction is nonetheless a conviction for immigration purposes, the IJ must examine the state court record to identify the reasons why the state court vacated the conviction. Pinho, 432 F.3d at 215. To complete this task, the IJ "must look first to the order [that vacated the conviction]. If the order explains the court's reasons for vacating the conviction, the [IJ]'s inquiry must end there. If the order does not give a clear statement of reasons, the [IJ] may look to the record before the court when the order was issued. No other evidence of reasons may be considered." Id. Thus, the IJ may rely only on reasons explicitly stated in the record and may not impute an unexpressed motive for vacating a conviction. See id.; Cruz, 452 F.3d at 244, 248 (holding that the BIA could reasonably determine that a conviction was vacated to allow a petitioner to avoid immigration consequences where a state prosecutor's letter stipulating the terms of a settlement agreement explicitly stated that the petitioner's scheduled deportation was a reason for the state's support for vacating the conviction). Put simply, "[w]e will not ... permit[ ] ... speculation ... about the secret motives of state judges and prosecutors." Pinho, 432 F.3d at 214–15.

Here, both the IJ and the BIA opined that the state court likely vacated Rivas's convictions to allow him to avoid the convictions's immigration consequences. To support this conclusion, the IJ relied on the facts that Rivas's trial counsel testified at the PCRA hearings that he did advise his client of the immigration consequences of a potential conviction, and that the state court denied Rivas's PCRA petition. However, these facts do not show that the state court vacated the convictions to allow Rivas to avoid their immigration consequences. Moreover, though trial counsel's testimony might have weakened Rivas's ineffective-assistance-of-counsel claim, the record fails to show that his counsel's alleged ineffectiveness was not the reason the convictions were vacated. We know only that the application to vacate was based on two ineffective-assistance-of-counsel claims stemming from the alleged failure of Rivas' counsel to advise him of the immigration consequences of his convictions and advice to forgo appealing his convictions, and that the convictions were in fact vacated. SeePinho, 432 F.3d at 211–13 (holding that where the record shows that the state did not answer a pending ineffective-assistance-of-counsel claim before agreeing to settlement, this supports the conclusion that the settlement was reached as a result of the constitutional claim).³ In addition, the IJ did not point to any evidence undermining the conclusion that the Commonwealth settled because of Rivas's pending ineffectiveness claim with respect to his trial counsel's failure to advise him to appeal the convictions. In fact, the IJ repeatedly asserted that the state court record was not clear as to the reasons why the prosecutor agreed to settle Rivas's claim and why the court vacated his convictions. Moreover, the BIA failed to confine itself to the factual record....