Oliver Lopez v. U.S. Attorney General, 662 F. App'x 764

Background

Lopez, a Nicaraguan native and lawful permanent resident since 1996, had state drug convictions in 2001 (Florida) and 2008 (Florida); he was served with a Notice to Appear in 2010 charging removability based on controlled-substance convictions.
The 2001 Florida judgment showed adjudication was withheld after a nolo contendere plea; Lopez later submitted a 2010 state-court order vacating the 2001 conviction but the order did not state a reason for vacatur.
The BIA granted Lopez’s motion to reopen and remanded to the IJ to determine the basis of the vacatur; Lopez provided no further documentation explaining the vacatur.
On remand the government added a 2014 Georgia battery conviction allegation (argued as an aggravated felony); the IJ sustained removability on the aggravated-felony and 2008 drug grounds and denied cancellation of removal because (a) aggravated-felony bar applied and (b) Lopez failed to show seven years of continuous residence due to the 2001 conviction.
The BIA affirmed: Lopez failed to prove the 2001 vacatur was based on a procedural or substantive defect (not rehabilitative/immigration-avoidance), so the conviction stands for immigration purposes; the BIA also denied remand because Lopez remained removable based on the 2008 conviction and failed to show prima facie eligibility for relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2001 Florida vacated conviction remains a "conviction" for immigration purposes	Lopez: Florida does not vacate convictions solely to avoid immigration consequences; vacatur should be given effect regardless of stated reason	Gov't: Vacatur effect depends on reason; silent vacatur may still be for rehabilitative or immigration-avoidance reasons and thus counts	Court: Lopez bore burden to show vacatur was for a procedural/substantive defect; record silent so conviction remains for immigration purposes
Whether Lopez is eligible for cancellation of removal (7 years continuous residence and no aggravated felony)	Lopez: Vacatur of 2001 conviction removes the break in continuous residence; also contended vacatur should be given full faith and credit	Gov't: 2001 vacatur unexplained so it cuts off continuous residence; separate aggravated-felony conviction also bars relief	Court: Denied relief—2001 conviction stands and cuts off accrual; aggravated-felony bar also applies (or alternatively 2008 drug conviction supports removability)
Whether BIA abused discretion in denying motion to remand/reopen to introduce evidence vacating Georgia conviction	Lopez: Remand warranted because Georgia battery conviction was vacated	Gov't: Even if Georgia conviction vacated, Lopez remains removable on 2008 drug conviction and failed to show prima facie eligibility for adjustment	Court: No abuse of discretion—denial proper because Lopez still removable and failed to establish prima facie eligibility
Burden of proof allocation over conviction and relief eligibility	Lopez: (implicit) burden should favor recognition of state vacatur	Gov't: Alien seeking relief must prove eligibility; government bears burden to prove removability but not to disprove collateral defenses	Court: Confirmed allocation—government proved removability on 2008 conviction; Lopez bore burden to prove eligibility and reason for vacatur and failed to do so

Key Cases Cited

Garces v. U.S. Atty. Gen., 611 F.3d 1337 (11th Cir.) (vacatur’s immigration effect depends on reason; vacatur for rehabilitative or immigration-avoidance purposes remains a conviction)
Ali v. U.S. Atty. Gen., 443 F.3d 804 (11th Cir.) (whether a vacated conviction remains a conviction for INA purposes depends on the reason for vacatur)
Chacku v. U.S. Atty. Gen., 555 F.3d 1281 (11th Cir.) (denial of motion to reopen reviewed for abuse of discretion; BIA may deny for failure to establish prima facie eligibility)
Assa’ad v. U.S. Atty. Gen., 332 F.3d 1321 (11th Cir.) (questions of law reviewed de novo)