Pickering v. Gonzales

• Decision Date: 17 July 2006
• Docket Number: No. 03-3928.,03-3928.
• Citation: 454 F.3d 525
• Parties: Christopher PICKERING, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 525

454 F.3d 525

Christopher PICKERING, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-3928.

United States Court of Appeals, Sixth Circuit.

Argued: December 1, 2004.

Decided and Filed: July 17, 2006.

ARGUED:

Russell R. Abrutyn, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioner. Greg D. Mack, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Marshal E. Hyman, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioner. Greg D. Mack, Donald Keener, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY and GILMAN, Circuit Judges; RICE, Senior District Judge.^*

OPINION

WALTER H. RICE, Senior District Judge.

Petitioner Christopher Pickering seeks review of a Board of Immigration Appeals ("BIA") order permanently barring him from the United States, based on a Canadian conviction for a drug offense, for which he was later pardoned pursuant to Canadian law, and which was later quashed by a Canadian appellate court.

Finding prejudicial error, we grant the Petition for Review.

Petitioner is a native and citizen of Canada. On November 6, 1980, he was indicted in Ontario, Canada, for the unlawful possession of Lysergic Acid Diethylamide ("LSD"). He pled guilty. His sentence required him to pay a fine of $300.00 (Canadian) or, in default of payment, to serve 30 days in custody.

In 1991, Petitioner entered the United States as a non-immigrant, intra-company transferee. His wife and their two children followed him as derivative non-immigrants. In 1992, the Immigration and Naturalization Service ("INS")¹ approved a Petition for Alien Worker (Form I-140) filed on behalf of Petitioner's wife by her employer. Mrs. Pickering later applied for adjustment of status based on the approved I-140, and Petitioner and their children filed derivative adjustment of status applications based on their relationship to Mrs. Pickering. On June 17, 1993, the INS approved Mrs. Pickering and the children's adjustment of status applications, making them lawful permanent residents.

On February 28, 1996, Petitioner received a pardon of his LSD conviction. Notwithstanding the pardon, his attempt to adjust his status was denied. On May 7, 1997, Petitioner filed a notice of appeal, with the Canadian court, seeking to have that conviction quashed. In a judgment dated June 20, 1997, the Canadian court quashed the Petitioner's 1980 conviction for unlawful possession of LSD. On August 21, 1998, the Petitioner's application for adjustment of status was again denied and removal proceedings were initiated, with the Immigration Judge finding the Petitioner to be removable on the basis of his LSD conviction. In his decision, the Immigration Judge declined to give effect to the Canadian court's order quashing the conviction, concluding that the court's action was solely for rehabilitative purposes, entered in order to avoid adverse immigration consequences and to allow the Petitioner to live permanently in the United States. The Petitioner appealed the Immigration Judge's decision to the BIA, and the BIA issued a published opinion denying Petitioner's appeal. Matter of Pickering, 23 I & N Dec. 621 (BIA 2003).

The BIA had jurisdiction, pursuant to 8 C.F.R. § 1003.1(b), to review the decision of the Immigration Judge who ordered Petitioner's removal. The BIA decision is a final agency decision. 8 C.F.R. § 1241.1. The Petitioner's Petition for Review was filed in a timely manner pursuant to 8 U.S.C. § 1252(b)(1). This Court has jurisdiction to review the BIA decision pursuant to 8 U.S.C. § 1252(a).

We review questions of law raised in removal proceedings de novo. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001). However, in order to reverse a BIA factual determination, the evidence must compel a contrary conclusion. Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001).

Pickering first argues that the BIA's decision fails as a matter of law. However, a review of that decision and the applicable case law reveals that the BIA correctly interpreted the law by holding that, if a court vacates an alien's conviction for reasons solely related to rehabilitation or to avoid adverse immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes. Matter of Pickering, 23 I & N Dec. 621, 624 (BIA 2003). This interpretation of the law is consistent with that of other circuits and with our own interpretation. A conviction vacated for rehabilitative or immigration reasons remains valid for immigration purposes, while one vacated because of procedural or substantive infirmities does not.² See Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); see also Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir.2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir.2000); Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001); but compare Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.2002) (holding that all convictions remain valid for immigration purposes) with Discipio v. Ashcroft, 369 F.3d 472 (5th Cir.2004) (following precedent in Renteria-Gonzalez, while criticizing it as overbroad).

The BIA upheld the Immigration Judge's order that Petitioner was removable based on the quashed drug conviction, ruling that the Canadian court had quashed the Petitioner's drug conviction solely for immigration purposes, in other words, to avoid adverse immigration consequences. Matter of Pickering, 23 I & N Dec. at 625, J.A. at 38. In determining that the Petitioner's conviction remained valid for immigration purposes, despite the order of the Canadian court quashing the conviction, the BIA relied on "the law under which the Canadian court issued its order and the terms of the order itself, as well as the reasons presented by the respondent in requesting that the court vacate the conviction." Id.

However, the record used by the BIA to determine that the Canadian court acted solely for immigration purposes appears to be incomplete. The BIA based its ruling on the fact that the "judgment only refers, as the grounds for ordering the conviction quashed, to the respondent's request and his supporting affidavit." Id. In fact, the Canadian court, in quashing the Petitioner's conviction, relied on "the notice of appeal filed herein and the affidavit of the [Petitioner] and [the] hearing...." J.A. at 62. There is nothing in the record before us regarding the hearing that the Canadian court relied upon, in part, to quash the conviction.

The Petitioner, in his notice of appeal and affidavit, stated that he was appealing his conviction because of the bar it placed on his permanent immigration to the United States. J.A. at 58 ¶ 5, 61 ¶ 18. The BIA imparted the Petitioner's motivation for seeking to have the conviction quashed onto the Canadian court as its rationale for quashing the conviction. Matter of Pickering, 23 I & N Dec. at 625, J.A. at 38. However, the motive of the Petitioner in seeking to have his conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583 (7th Cir.2001). Such motive is relevant only to the extent that the Canadian court relied upon it in quashing the conviction. As the record before us does not include a record of the hearing and is, therefore, incomplete, it is impossible to tell the extent to which the Canadian court relied upon Petitioner's motive, or even why the Canadian court acted in the manner it did.

The government relies on this Court's ruling in Zaitona, 9 F.3d at 437, to support the proposition that "where the record, as here, provides a reasonable basis to conclude that a motion to quash or vacate a conviction is driven by immigration hardships and not [by] remedying statutory or constitutional violations, . . . a conviction remains a conviction for immigration purposes." Final Brief of Respondent at 35. Zaitona, however, is easily distinguishable on the facts.

In Zaitona, the only explanation offered by the state court for vacating the conviction was so that it might consider a Judicial Recommendation Against Deportation ("JRAD"). Zaitona, 9 F.3d at 437. Immediately following the vacation of his conviction Zaitona pleaded guilty to the identical crime. The only difference between the first and second sentence was the JRAD. Id. In Zaitona, "[i]t was unimportant to [the Court's] determination that Zaitona's attorney may have originally surrounded his request for the JRAD with language of ineffective assistance of counsel. . .," because it was apparent from the order of the court and the record that the conviction was vacated solely for immigration reasons. Id. Unlike Zaitona, in the instant case, the order of the Canadian court is silent on the question of its motivation, referring instead to the Petitioner's request, supporting affidavit and "hearing." Matter of Pickering, 23 I & N Dec. at 625, J.A. at 38. In Zaitona, the record provided more than a "reasonable basis" for concluding that the judgment was vacated for immigration reasons. Indeed, the record clearly revealed "substantial evidence that the [] court's action was taken for the sole purpose of relieving Zaitona from deportation." Zaitona, 9 F.3d at 437. Here, the record before us lacks the record of the hearing upon which the Canadian judge relied, at least in part, in quashing the conviction.

As the order of the Canadian court is silent on the question of its motivation or rationale, the BIA looked to the notice of appeal and affidavit filed by the Petitioner, ruling that neither identified a basis to question the integrity of the underlying criminal proceeding or conviction. There is no reference to the hearing before the Canadian court, no indication that the BIA had that record in its possession and no indication that it reviewed it in any fashion to determine the rationale behind the decision of that court. Id. In its decision, the BIA...