In re Thomas

• Citation: 27 I&N Dec. 674
• Decision Date: 25 October 2019
• Docket Number: Interim Decision #3966
• Parties: Matter of Michael Vernon THOMAS, Respondent Matter of Joseph Lloyd THOMPSON, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 674

Matter of Michael Vernon THOMAS, Respondent Matter of Joseph Lloyd THOMPSON, Respondent

Interim Decision #3966

U.S. Department of Justice Office of the Attorney General

October 25, 2019

(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.

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.

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 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 subsequentlypetitioned 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...