769 F.3d 144
2d Cir.2014Background
- Sutherland, a Jamaica native, was a lawful permanent resident who pleaded guilty in 1997 to attempted possession for sale of four or more pounds of marijuana in Arizona.
- She was placed on probation and completed community service; no immediate immigration consequences.
- In 2006, DHS denied naturalization and charged removability based on her 1997 conviction as a controlled substance offense and an aggravated felony.
- During removal, Sutherland sought vacatur of her conviction in Arizona under ARS § 13-907, asserting rehabilitative and immigration-related reasons.
- Arizona Superior Court granted vacatur in 2011 solely for rehabilitative/immigration-consequence avoidance reasons; IJ denied termination of removal, and BIA affirmed.
- The court ultimately dismissed the petition for review for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C) and related authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacatur under ARS § 13-907 forecloses removability. | Sutherland argues vacatur eliminates the conviction for immigration purposes. | Government asserts vacatur was for rehabilitative reasons and keeps the conviction valid for removability. | Vacatur remained valid for immigration purposes; removability stands. |
| Who bears the burden to show the underlying basis for vacatur remains valid for removability? | Sutherland contends the government must prove the basis for vacatur. | Government bears no explicit burden or the burden is not clearly resolved; vacatur supports removability. | Record shows vacatur was for rehabilitation/adverse immigration avoidance, sustaining removability. |
| Does Padilla retroactively affect vacatur or removability arguments? | Sutherland speculates Padilla could Gov’t vacatur grounds. | Padilla does not retroactively apply to final convictions. | Padilla does not apply retroactively; vacatur still rehabilitative. |
Key Cases Cited
- Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007) (conviction vacated for rehabilitation keeps it valid for removability)
- Poblete Mendoza v. Holder, 606 F.3d 1137 (9th Cir. 2010) (ARS § 13-907 vacatur remains valid for immigration purposes)
- Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (jurisdictional review of removal vs. underlying aggravated felony)
- Chaidez v. United States, 568 U.S. 342 (U.S. 2013) (Padilla retroactivity not applicable to 1997 conviction)
- NLRB v. Wyman-Gordon Co., 394 U.S. 759 (U.S. 1969) (idle and useless formality doctrine in remand)