844 F.3d 392
3rd Cir.2016Background
- Raul Rivas, a Dominican national and lawful permanent resident, was convicted in 2013 in Philadelphia Municipal Court of PCP possession/purchase and sentenced to 18 months’ probation. DHS served a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(B)(i) based on those convictions.
- Rivas filed a Pennsylvania PCRA petition alleging ineffective assistance of trial counsel (failure to advise of immigration consequences and to appeal). After three days of hearings (including trial counsel’s testimony), the Municipal Court denied the PCRA petition but, by agreement, vacated the convictions and placed Rivas on a three-year pretrial/deferred probation with conditions including a stipulation to the Commonwealth’s evidence.
- Rivas moved to terminate removal proceedings arguing the convictions were vacated on substantive grounds and thus he was no longer “convicted” for immigration purposes. He also averred the vacatur was not done solely to avoid immigration consequences.
- The IJ denied termination, concluding the vacatur was to avoid immigration consequences; the BIA affirmed on two independent grounds: (1) vacatur was to avoid immigration consequences; and (2) even if vacated on substantive grounds, the deferred adjudication (stipulation + restraint on liberty) still constituted a "conviction" under the INA.
- The Third Circuit reviewed whether the state-court disposition amounted to a "conviction" for INA purposes and whether relying on the deferred adjudication as a removal ground violated Rivas’s due process notice rights.
Issues
| Issue | Plaintiff's Argument (Rivas) | Defendant's Argument (DHS/BIA) | Held |
|---|---|---|---|
| Whether the vacatur removed the underlying “conviction” for INA removability | Vacatur followed PCRA claim alleging ineffective assistance; record does not show vacatur was to avoid immigration consequences, so conviction no longer counts | Vacatur was effectively to avoid immigration consequences (based on counsel testimony and statements) | Court held Rivas met burden; record does not show vacatur was to avoid immigration consequences; vacatur counts as vacating conviction for INA purposes |
| Whether the deferred adjudication (stipulation + probation) nonetheless constitutes an INA “conviction” | Even if vacated, removing based on deferred adjudication is a distinct theory not charged in the NTA; Rivas lacked notice of that basis | BIA: stipulation to evidence and restraint on liberty satisfy INA definition of “conviction” | Court did not decide whether deferred adjudication qualifies as a conviction on the merits because applying it here would violate due process notice requirements; remanded in Rivas’s favor on notice grounds |
| Whether the IJ/BIA permissibly considered extrarecord motives for vacatur | Rivas: motive speculation is impermissible; inquiry must be limited to vacatur order and state-court record | IJ/BIA relied on counsel testimony and court statements to infer motive | Court held IJ/BIA impermissibly speculated beyond what the vacatur order/record conclusively established and thus erred |
| Whether DHS could instead charge removability based on the deferred adjudication without new notice | Rivas: DHS waived or cannot change the ground post hoc without new notice | DHS/BIA implied deferred adjudication could sustain removal | Court: DHS may pursue deferred-adjudication-based removability only by issuing a new Notice to Appear; relying on it here violated § 1229(a)(1) and due process |
Key Cases Cited
- Cruz v. Attorney General, 452 F.3d 240 (3d Cir. 2006) (adopts Pickering framework for when vacated convictions remain "convictions" under INA)
- Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) (limits inquiry into reasons for vacatur to the vacatur order and record; prohibits speculation about state actors’ secret motives)
- Kwong Hai Chew v. Colding, 344 U.S. 590 (U.S. 1953) (lawful permanent residents entitled to due process including notice and hearing before expulsion)
- Syblis v. Attorney General, 763 F.3d 348 (3d Cir. 2014) (burden on alien to prove conviction was vacated for immigration purposes)
- Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. 2010) (Government may lodge additional charges and initiate new removal proceedings with appropriate notice)
- Frias-Camilo v. Attorney General, 826 F.3d 699 (3d Cir. 2016) (court has jurisdiction to review legal questions about whether a state disposition constitutes an INA "conviction")