27 I. & N. Dec. 251
BIA2018Background
- Respondent, a Mexican national, entered the U.S. at an unknown time; convicted in Texas of theft on June 14, 2016, but a motion for new trial was granted and the State later moved to dismiss; the criminal case was dismissed on February 14, 2017.
- Immigration Judge (IJ) found respondent removable as present without admission or parole and pretermitted his cancellation of removal application because the IJ treated the vacated conviction as still a conviction for immigration purposes.
- IJ relied on Fifth Circuit precedent Renteria-Gonzalez v. INS, which holds that vacated convictions remain valid for immigration purposes regardless of reason for vacatur.
- Respondent and DHS jointly appealed, arguing the vacatur was for procedural/substantive defects and thus the conviction should not count under the Board’s prior decision in Matter of Pickering.
- The Board reaffirmed Matter of Pickering, concluded 101(a)(48)(A) is silent as to vacated convictions, applied Chevron/Brand X deference to the agency interpretation, and held convictions vacated for procedural or substantive defects are not convictions for immigration purposes.
- To promote uniformity, the Board modified Pickering to apply nationwide (including the Fifth Circuit) and remanded to the IJ for further proceedings on cancellation of removal and other relief.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether a conviction vacated for procedural or substantive defects counts as a "conviction" under INA §101(a)(48)(A) | Vacatur for defects eliminates the conviction for immigration purposes | Agreed with respondent; DHS concurs that vacatur for defects removes conviction | Vacatur for procedural/substantive defects means no conviction for immigration purposes (Pickering affirmed) |
| Whether convictions vacated for non-merits reasons (e.g., rehabilitation) remain convictions | Such post-conviction relief should not negate immigration consequences | DHS agrees these remain valid convictions | Convictions vacated for non-merits reasons remain convictions for immigration purposes |
| Whether Board's Pickering rule binds nationwide, including the Fifth Circuit | Apply Pickering nationwide; Renteria-Gonzalez is not controlling over agency interpretation | DHS joined request to apply Pickering nationwide | Board applies Pickering nationwide, modifying prior limited application and displacing Renteria-Gonzalez conflict |
| Whether the Board may rely on Chevron/Brand X to adopt this interpretation despite contrary circuit precedent | Agency interpretation is entitled to deference where statute is silent/ambiguous | DHS supports agency application of Chevron deference | Board found §101(a)(48)(A) silent on vacated convictions and applied Chevron/Brand X to adopt Pickering rationale nationally |
Key Cases Cited
- Matter of Pickering, 23 I.&N. Dec. 621 (BIA 2003) (agency rule distinguishing vacaturs based on merits vs. non-merits)
- Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (held vacated convictions remain valid for immigration purposes)
- Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) (applying Pickering’s approach)
- Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004) (expressed limits on Renteria and remanded after Gov’t adopted Pickering)
- Gaona-Romero v. Gonzales, 497 F.3d 694 (5th Cir. 2007) (remanded so government could follow Pickering)
- Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (agency deference framework)
- Brand X Internet Servs. v. FCC, 545 U.S. 967 (2005) (prior judicial constructions do not defeat a permissible agency interpretation)