44 F.4th 1169
9th Cir.2022Background
- Ballinas‑Lucero (Mexican national, long‑time U.S. resident) pleaded guilty without counsel to six misdemeanor theft counts in Orange County, CA, in January 2012; he claims limited English, no advice of immigration consequences, and that he did not understand the proceedings.
- DHS placed him in removal proceedings; he applied for cancellation of removal under 8 U.S.C. § 1229b(b), but multiple convictions for crimes involving moral turpitude (CIMTs) rendered him ineligible unless a petty‑offense exception applied.
- While his BIA appeal was pending, he moved under Cal. Penal Code § 1018 to withdraw his guilty pleas; the prosecutor did not oppose, the Superior Court vacated the six convictions, and later he pled guilty (with counsel) to a single misdemeanor; five counts were dismissed.
- He sought reopening of immigration proceedings and argued the vacated convictions were no longer convictions for immigration purposes because vacatur was based on procedural/substantive defects in the criminal proceedings (grounds recognized by § 1018 and California case law).
- The IJ and BIA required proof whether the vacatur was on the merits (procedural/substantive defect) versus for rehabilitative/equitable or immigration‑purpose reasons; the BIA found the record inconclusive, held Ballinas‑Lucero bore the burden, and denied cancellation eligibility.
- The Ninth Circuit held (1) Pereida controls: applicants for cancellation bear the burden to prove vacatur was based on substantive or procedural defects rather than solely for immigration/rehabilitative reasons; and (2) on this record the court compelled a finding that the § 1018 vacatur was for defects in the pleas, so the case is remanded to the BIA to decide whether the remaining single misdemeanor qualifies for the petty‑offense exception and whether statutory cancellation requirements are met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden to show a vacated conviction is not valid for immigration purposes? | Ballinas‑Lucero argued the government must show vacatur was for immigration/rehabilitative reasons. | Government/BIA argued respondent must prove eligibility for relief, including that vacatur was on the merits. | Court: Under Pereida, applicant for cancellation bears the burden to prove vacatur removed immigration consequence. |
| Whether the Superior Court vacatur under Cal. Penal Code § 1018 was based on procedural/substantive defects (thus eliminating the convictions for immigration purposes) | Ballinas‑Lucero relied on his § 1018 motion and supporting memorandum describing lack of counsel, misunderstanding, fear, and failure to understand immigration consequences. | BIA argued absence of an explicit judicial statement of reason made the record inconclusive and that vacatur might have been for equitable/rehabilitative reasons. | Court: The record (statute + motion + court minutes + unopposed DA) compels that vacatur was for procedural/substantive defects; BIA’s inconclusive finding was not supported by substantial evidence. |
| Effect of vacatur on eligibility for cancellation of removal | Ballinas‑Lucero argued vacatur eliminated five convictions leaving a single misdemeanor that might fall within the petty‑offense exception. | Government contended vacated convictions may remain valid for immigration purposes unless proven otherwise, preserving ineligibility. | Court: Vacatur valid for immigration purposes; remand to BIA to determine if the remaining conviction is a CIMT and if it qualifies for the petty‑offense exception and whether statutory cancellation criteria are satisfied. |
| Proper remedy when BIA’s factual finding is unsupported | Ballinas‑Lucero sought reversal and remand for merits on eligibility. | Government sought affirmance of BIA denial. | Court: Grant petition for review; remand to BIA to decide remaining statutory issues in first instance. |
Key Cases Cited
- Pereida v. Wilkinson, 141 S. Ct. 754 (Supreme Court 2021) (applicant for cancellation bears burden to prove absence of disqualifying conviction when records ambiguous)
- Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006) (vacatur for procedural or substantive defect removes conviction for immigration purposes)
- Castillo‑Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (petty theft under Cal. Penal Code § 484 is a CIMT for immigration purposes)
- Silva v. Garland, 993 F.3d 705 (9th Cir. 2021) (discussion of CIMT doctrine and prior circuit precedent)
- Lafarga v. INS, 170 F.3d 1213 (9th Cir. 1999) (petty‑offense exception requirements)
- Padilla v. Kentucky, 559 U.S. 356 (Supreme Court 2010) (defense counsel must advise on immigration consequences of convictions)
- Poblete Mendoza v. Holder, 606 F.3d 1137 (9th Cir. 2010) (vacatur may be for rehabilitative reasons and thus remain operative for immigration)
- Prado v. Barr, 949 F.3d 438 (9th Cir. 2020) (state law reclassification for rehabilitation can render vacatur ineffective for immigration purposes)