Christopher Pickering v. Alberto Gonzales, Attorney General
Docket: 03-3928
Court: Court of Appeals for the Sixth Circuit; October 4, 2006; Federal Appellate Court
Christopher Pickering, a Canadian citizen, seeks judicial review of a Board of Immigration Appeals (BIA) order barring his entry into the United States due to a prior drug conviction for possession of LSD, despite receiving a pardon and having the conviction quashed by a Canadian appellate court. Pickering was indicted in 1980, pled guilty, and was fined or faced jail time. He entered the U.S. in 1991 as a non-immigrant, with his family following. His wife's successful petition for permanent residency did not extend to him, as his adjustment of status was denied despite the pardon he received in 1996. Following his appeal to a Canadian court, which quashed the conviction in 1997, Pickering's subsequent adjustment application was again denied, leading to removal proceedings where an Immigration Judge ruled him removable based on the original conviction. The Immigration Judge disregarded the Canadian court's order, viewing it as a mere rehabilitative measure to mitigate immigration consequences. The BIA upheld the Immigration Judge's decision in a published opinion in 2003. Pickering's timely petition for review was filed, and the Court has jurisdiction to evaluate the legal questions involved, reviewing factual determinations only if the evidence overwhelmingly supports a different conclusion.
Pickering contends that the BIA's decision is legally flawed. A review indicates that the BIA correctly interpreted the law, establishing that when a court vacates an alien's conviction solely for rehabilitation or to mitigate immigration hardships, rather than due to procedural or substantive defects, the conviction remains valid for immigration purposes. This aligns with interpretations across various circuits. Specifically, a conviction vacated for rehabilitative reasons is still considered valid for immigration, while a conviction vacated due to procedural issues is not.
In Matter of Pickering, the BIA upheld the Immigration Judge's determination that Pickering was removable based on his quashed drug conviction, asserting that the Canadian court quashed it only to avoid adverse immigration consequences. The BIA's conclusion was based on the law and the terms of the Canadian court's order, as well as the reasons provided by Pickering for seeking the vacatur. However, the record appears incomplete since it lacks details about the hearing the Canadian court relied upon, which is crucial to understanding its decision.
The record only mentions Pickering's motivation for appealing his conviction, which was related to immigration barriers. While the BIA inferred that the Canadian court accepted this motive as its reason for the vacatur, the relevance of Pickering's motivation is limited unless it directly influenced the Canadian court's decision. The absence of hearing records makes it difficult to ascertain the Canadian court's rationale fully. The government cites Zaitona to argue that a motion to vacate motivated by immigration hardships does not negate the validity of the conviction for immigration purposes; however, the facts of Zaitona differ significantly from this case.
In Zaitona, the state court vacated the conviction solely to consider a Judicial Recommendation Against Deportation (JRAD), which led Zaitona to plead guilty again to the same crime, with the JRAD being the only difference in sentencing. The court emphasized that the vacation was for immigration purposes, indicating substantial evidence supporting this conclusion. In contrast, the Canadian court's order in the current case is silent regarding its motivation, relying instead on the Petitioner's request and supporting affidavit. The Board of Immigration Appeals (BIA) noted the absence of a record from the Canadian hearing that informed the court's decision. As the Canadian court did not reference any legal authority, the BIA presumed the decision was for immigration purposes. However, the Petitioner argued that he cited Section 24(1) of the Canadian Charter of Rights and Freedoms in his appeal, indicating that the Canadian court must have found a violation of his rights to quash the conviction. Expert testimony supported this, stating that a Canadian court can only quash a conviction under Section 24(1) for rights violations, contradicting the BIA's assumption that the Canadian court acted solely for immigration reasons without considering the legal basis provided by the Petitioner.
The government bears the burden of proof when seeking to deport a resident alien, requiring 'clear, unequivocal, and convincing evidence' to establish deportability. In this case, the government initially demonstrated its prima facie case by indicating the Petitioner’s drug crime conviction. However, the Petitioner countered by providing evidence that the conviction was vacated by a competent court, fulfilling his burden to show non-deportability. For the government to prove deportability, it must demonstrate that the conviction was vacated solely for immigration purposes, which it did not achieve. The Board of Immigration Appeals (BIA) based its determination on incomplete records, including only parts of the Petitioner’s affidavit and notice of appeal, leading to an inference that the Canadian court acted for immigration reasons. The BIA's conclusion lacked the necessary 'clear and convincing' evidence and did not meet the standard of substantial evidence required for upholding the deportability finding. Therefore, the government failed to present direct evidence or sufficient inferential evidence to support its claim that the conviction was vacated for immigration-related reasons.
The Petitioner was deemed deportable by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) due to a Canadian drug conviction, which had been quashed. A quashed conviction is valid for immigration purposes if vacated solely for rehabilitative reasons. The IJ and BIA concluded that the Petitioner's conviction was vacated for rehabilitation to permit him to remain in the U.S. However, the Court found insufficient evidence to support this conclusion, determining that the government did not meet its burden of proving deportability by clear and convincing evidence. The Court noted that remanding for further consideration was typically appropriate when an agency fails to provide a legally sufficient basis for its decision; however, in this case, the hearing officer adequately considered the evidence. The absence of sufficient evidence for deportability indicated that the BIA should have concluded the Petitioner was not deportable. Consequently, the Court reversed the BIA's decision and remanded the case for the termination of deportation proceedings and quashing of the deportation order. The Court clarified that the functions of the Immigration and Naturalization Service have since transitioned to the Department of Homeland Security.
Zaitona, a decision from 1993, predates a 1996 amendment to 8 U.S.C. 1229a(c)(3) that removed the term "unequivocal" from the Immigration and Nationality Act. The amendment is considered to have minimal effect on the evidentiary standard, as evidence deemed "equivocal" cannot meet the "clear and convincing" requirement. The government asserts that the Petitioner must prove the conviction was not vacated solely for immigration reasons, but the BIA and several circuit courts have established that the government carries the burden to show a vacated conviction remains valid for immigration purposes. The Canadian court’s order quashing the Petitioner's conviction is based on the Petitioner’s affidavit and related legal procedures, indicating the court acted within its authority to address rights violations rather than to circumvent immigration consequences. It is presumed that courts act correctly under the law, as established in relevant case law. Additionally, Section 1252(a)(1) limits judicial review of final removal orders, often restricting the introduction of new evidence or the BIA's ability to consider additional evidence.
