PICKERING
23 I. & N. Dec. 621 (2003)
Rule of Law:
If a court vacates an alien’s conviction for reasons solely related to rehabilitation or 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.
Facts:
- Christopher Pickering is a native and citizen of Canada.
- On November 6, 1980, Christopher Pickering was convicted in Chatham, Ontario, Canada, of unlawful possession of Lysergic Acid Diethylamide (LSD), contrary to Section 41(1) of the Food & Drugs Act.
- Christopher Pickering was sentenced to pay a fine of $300.00 (Canadian) or, in default of payment, to 30 days in custody.
- In March 1993, Christopher Pickering filed an application for adjustment of status to become a lawful permanent resident in the United States.
- Aware that his 1980 controlled substance conviction rendered him ineligible for adjustment of status, Christopher Pickering requested that the Ontario Court of Justice (General Division) quash the conviction.
- In a judgment dated June 20, 1997, the Ontario Court of Justice quashed Christopher Pickering’s 1980 conviction for unlawful possession of LSD.
- Christopher Pickering's affidavit, supporting his request to quash the conviction, alleged that his conviction was a bar to his permanent residence in the United States and indicated that the sole purpose for the order was to eliminate that bar.
- The order quashing the conviction did not reference a specific law or identify a basis to question the integrity of the underlying criminal proceeding or conviction.
Procedural Posture:
- On November 6, 1980, Christopher Pickering was convicted in Chatham, Ontario, Canada, of unlawful possession of a restricted drug.
- On August 21, 1998, Christopher Pickering's application for adjustment of status was denied by the U.S. immigration authorities.
- Following the denial of his adjustment of status application, removal proceedings were initiated against Christopher Pickering.
- An Immigration Judge found Christopher Pickering removable as an alien convicted of a controlled substance violation and ordered him removed from the United States.
- The Immigration Judge declined to give effect to the Canadian court’s order quashing the conviction, finding that the court’s action was for rehabilitative purposes to allow Christopher Pickering to live permanently in the United States.
- Christopher Pickering appealed the Immigration Judge's decision to the Board of Immigration Appeals.
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Issue:
Does a foreign court's order quashing an alien's conviction, issued solely for rehabilitation or to avoid immigration hardship rather than due to a defect in the underlying criminal proceedings, eliminate that conviction for immigration purposes under the Immigration and Nationality Act?
Opinions:
Majority - Pauley, Board Member
No, a foreign court's order quashing an alien's conviction does not eliminate that conviction for immigration purposes if it was issued solely for rehabilitation or to avoid immigration hardship rather than due to a defect in the underlying criminal proceedings. The Board of Immigration Appeals (BIA) defines "conviction" under Section 101(a)(48)(A) of the Immigration and Nationality Act. The BIA distinguished between convictions vacated on the basis of a procedural or substantive defect in the underlying criminal proceedings, which are eliminated for immigration purposes, and those vacated because of post-conviction events, such as rehabilitation or immigration hardships, which are not. This interpretation aligns with prior BIA decisions in Matter of Roldan (rehabilitative statutes do not vitiate a conviction) and Matter of Rodriguez-Ruiz (convictions vacated on the merits do not count), as well as federal circuit court precedent (e.g., Herrera-Inirio v. INS, United States v. Campbell, Zaitona v. INS, Beltran-Leon v. INS). These federal courts have consistently held that state actions vacating a conviction for rehabilitative goals or to avoid immigration consequences, rather than due to a defect in the underlying criminal case, have no bearing on whether an alien is considered "convicted" under the INA. The BIA determined that the fact this case involved a foreign conviction does not alter this analysis regarding the purpose of the vacation. To ascertain the purpose, the BIA examines the law under which the court issued its order, the terms of the order itself, and the reasons presented by the respondent. In Christopher Pickering's case, the Canadian court's order and Christopher Pickering's supporting affidavit did not identify any defect in the underlying criminal proceeding. Instead, Christopher Pickering's affidavit explicitly stated that the sole purpose for seeking the order was to eliminate the conviction as a bar to permanent residence in the United States. Therefore, the quashing of the conviction was for immigration purposes, not due to a defect in the conviction or its underlying proceedings, and Christopher Pickering remains "convicted" for immigration purposes.
Analysis:
This case significantly clarifies the Board of Immigration Appeals' strict interpretation of a "conviction" under INA § 101(a)(48)(A) in the context of vacated or quashed convictions, particularly those from foreign jurisdictions. It solidifies the principle that the reason for a conviction's vacatur is paramount for immigration purposes, reinforcing that actions taken for rehabilitative reasons or to mitigate immigration consequences will not eliminate a conviction unless based on an underlying legal or procedural defect. This decision effectively limits an alien's ability to circumvent immigration consequences through post-conviction relief that does not challenge the inherent validity of the original criminal finding, thereby emphasizing the finality of convictions for immigration law absent a merits-based vacatur. The ruling serves as a critical precedent for assessing the enduring impact of criminal convictions on an alien's immigration status.
