Christopher Pickering v. Alberto Gonzales, Attorney General
Docket: 03-3928
Court: Court of Appeals for the Sixth Circuit; July 17, 2006; Federal Appellate Court
Christopher Pickering, a Canadian citizen, sought review of a Board of Immigration Appeals (BIA) order that permanently barred him from the United States due to a drug conviction for which he had received a pardon and later had quashed by a Canadian appellate court. Pickering was indicted in 1980 for unlawful possession of LSD, pled guilty, and was fined or sentenced to custody. He entered the U.S. in 1991 as a non-immigrant, and his family followed him. His wife received lawful permanent resident status in 1993, which allowed Pickering and their children to apply for adjustment of status. Despite receiving a pardon in 1996, his adjustment application was denied, and removal proceedings were initiated in 1998 based on his conviction. The Immigration Judge dismissed the Canadian court's quashing of the conviction, viewing it as a rehabilitative measure aimed at circumventing immigration issues. The BIA upheld the Immigration Judge's decision, asserting jurisdiction under 8 C.F.R. § 1003.1(b). Pickering filed a timely petition for review, and the court will evaluate legal questions de novo, while requiring compelling evidence to overturn BIA factual determinations.
Pickering contends that the BIA's decision is legally flawed. However, the BIA correctly interpreted that a court's vacation of an alien's conviction, based solely on rehabilitation or to mitigate immigration hardships, does not nullify the conviction for immigration purposes. This interpretation aligns with precedent in other circuits. The BIA upheld the Immigration Judge's finding that Pickering was removable due to a drug conviction that had been vacated by a Canadian court purely to avoid negative immigration consequences. The BIA's conclusion relied on the Canadian court's order and the reasons presented by Pickering for vacating the conviction. Nonetheless, the record considered by the BIA appears incomplete, lacking information about the hearing that the Canadian court referenced in its decision. Although the BIA attributed the motivation for vacating the conviction to Pickering's immigration concerns, this motive is only relevant if the Canadian court explicitly relied on it. The government's reliance on the case of Zaitona to argue that a conviction remains valid when vacated solely for immigration reasons is distinguishable; in Zaitona, the state court explicitly indicated that the vacation was for immigration-related considerations. In contrast, the Canadian court's order in Pickering's case does not specify its motivation, making it unclear to what extent the court's decision was influenced by Pickering's motives.
The record in Zaitona indicates a strong basis for concluding that the judgment was vacated for immigration-related reasons, revealing substantial evidence that the Canadian court's action aimed solely to relieve Zaitona from deportation. However, in the current case, the record lacks details from the Canadian hearing that informed the judge's decision to quash the conviction. The Canadian court order does not clarify its rationale, leading the Board of Immigration Appeals (BIA) to rely on the notice of appeal and the Petitioner’s affidavit, neither of which contests the integrity of the original criminal conviction.
The BIA distinguished this case from Matter of Rodriguez-Ruiz, where a state court vacated a conviction based on the legal merits. Since the Canadian court order did not reference any legal authority, the BIA presumed the decision was motivated solely by immigration concerns. It inferred that the Canadian court accepted the Petitioner’s motives but disregarded the legal basis he presented for vacating his conviction under Section 24(1) of the Canadian Charter of Rights and Freedoms, which allows appeals for violations of rights guaranteed by the Charter.
Expert testimony submitted by the Petitioner, which the government did not dispute, asserted that a Canadian court can only vacate a conviction under Section 24(1) for reasons linked to rights violations. Thus, if the Canadian court acted under this legal authority, it could not have done so solely for immigration purposes. The BIA’s presumption contradicts the Petitioner’s claims regarding the legal rationale for the vacatur.
In deportation proceedings, the government bears a significant burden to prove deportability with clear and convincing evidence. While the government established a prima facie case by demonstrating the Petitioner’s drug conviction, the Petitioner countered by providing evidence that the conviction was vacated by a competent court, thereby meeting his burden of showing non-deportability. Consequently, the Petitioner can only be deemed deportable if the government produces clear, convincing evidence that the conviction was vacated for immigration reasons, necessitating evidence of a valid conviction for immigration purposes.
The government must establish, with clear and convincing evidence, that the Petitioner's conviction was quashed solely for rehabilitative purposes or to avoid negative immigration consequences. The government did not meet this burden. The Board of Immigration Appeals (BIA) based its decision on the Petitioner's notice of appeal and affidavit, but failed to consider the absence of a complete record from the Canadian court and overlooked that the Petitioner appealed under a law focused on procedural or substantive defects, not immigration status. The conclusion that the Canadian court acted solely for immigration reasons was inferred rather than supported by definitive evidence. The BIA upheld the Immigration Judge's (IJ) finding of deportability based on the quashed conviction, asserting it remained valid for immigration purposes if vacated solely for rehabilitation. However, this Court finds insufficient evidence to support that conclusion, indicating the government did not prove deportability convincingly. Although typically, insufficient agency decisions are remanded for further review, this case is distinct as the IJ and BIA did not neglect evidence or fail to articulate reasoning.
The court determined that remanding the case for further proceedings would not allow the government to meet its burden of proof without introducing new evidence not currently in the record. While the court has greater review powers than those granted in asylum petitions, it lacks the authority to remand for the introduction of additional evidence at the request of a party without congressional intent to do so. The record before the Board of Immigration Appeals (BIA) did not contain sufficient evidence to support a finding of deportability. Had the BIA correctly applied the facts to the law, it would have concluded that the Petitioner was not deportable. The court found that the Immigration and Naturalization Service (INS) did not establish by clear and convincing evidence that Pickering's conviction was valid for immigration purposes or that the Canadian court quashed the conviction solely to avoid negative immigration consequences. The BIA's conclusion that the government proved the Petitioner deportable was contrary to the evidence presented. Therefore, the BIA's judgment is reversed, and the case is remanded for the termination of deportation proceedings and the quashing of the deportation order. The excerpt also notes the transfer of INS functions to the Department of Homeland Security and explains the concept of vacating a conviction for rehabilitative purposes under state law.
The government asserts that the Petitioner must prove that his conviction was not quashed solely for immigration reasons. However, the BIA, Seventh Circuit, and Tenth Circuit have determined that the government holds the burden to demonstrate the validity of a vacated conviction for immigration purposes. The Canadian court's order to quash the Petitioner’s conviction was based on his affidavit, a notice of appeal, and a hearing, invoking Canadian legal standards that require a procedural or substantive defect for such action. The only cited authority permits the court to act for violations of the Petitioner’s rights, and it is presumed that the court did not act merely to facilitate avoidance of immigration repercussions. Relevant case law supports this presumption, indicating that when a state court acts under authority unrelated to immigration consequences, the government fails to show deportability, even if the court might have had some motivation regarding immigration. Additionally, 8 U.S.C. § 1252(a)(1) restricts the introduction of new evidence in judicial review of final removal orders, impacting the Petitioner's ability to present additional evidence or the court's authority to require the BIA to reopen the record.
