In re Chavez-Martinez

• Decision Date: 31 August 2007
• Docket Number: Interim Decision No. 3578.,File A37 731 348.
• Parties: In re Gildardo CHAVEZ-Martinez, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 272

In re Gildardo CHAVEZ-Martinez, Respondent.

Interim Decision No. 3578.

File A37 731 348 - Chicago.

Board of Immigration Appeals.

Decided August 31, 2007.

(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 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...