27 I. & N. Dec. 674
BIA2019Background
- Two consolidated certified matters (Matter of Thomas and Matter of Thompson) involved lawful permanent residents convicted in Georgia of family violence battery with 12‑month sentences and removal charges as aggravated felons based on a "term of imprisonment at least one year."
- While removal proceedings were pending, each respondent obtained a state‑court post‑sentence order shortening the sentence by a few days; neither order alleged a procedural or substantive defect in the original proceedings.
- Under Board precedent, different tests applied depending on whether the state order "vacated," "modified," or "clarified" the conviction/sentence (Pickering for vacaturs; Cota‑Vargas/Song for modifications; Estrada for clarifications), producing inconsistent immigration outcomes for similarly situated respondents.
- The Attorney General reviewed and overruled the Board’s Cota‑Vargas, Song, and Estrada precedents, adopting a single rule (extending the Pickering test) for all state‑court sentence alterations.
- New rule: a state‑court alteration (vacatur, modification, clarification, or other change) will affect immigration consequences only if it was based on a procedural or substantive defect in the underlying criminal proceeding; alterations for rehabilitative, immigration‑avoidance, or other non‑merits reasons have no immigration effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether different Board tests should govern post‑conviction state orders depending on label (vacatur, modification, clarification) | Thomas/Thompson argued the specific Board tests apply; each relied on the form the state court used | DOJ/AG argued uniform application of Pickering is required; Board tests cause inconsistency and lack statutory basis | Overruled Cota‑Vargas, Song, Estrada; apply Pickering uniformly to all sentence alterations |
| Whether a state‑court alteration based on rehabilitation or immigration hardship must be given immigration effect | Respondents: such state orders should be effective (esp. under full faith and credit) | AG: alterations for non‑merits reasons do not change the original conviction/sentence for INA purposes | Held: non‑merits reasons do not affect immigration consequences; only defects in underlying proceedings do |
| Whether applying Pickering to modifications/clarifications violates Full Faith and Credit or federalism/comity principles | Respondents: immigration authorities must give full effect to state judgments; federal review intrudes on state authority | AG: INA controls federal effect; interpreting federal term (conviction/sentence) does not relitigate state judgments and §1738 does not bind agencies | Held: No violation; immigration authorities interpret federal statute; §1738 applies to courts not agencies, so agency may assess federal effect |
| Whether the Attorney General must change this policy through rulemaking rather than adjudication | Respondents favored rulemaking for policy change | AG: agency adjudication is appropriate; precedent itself developed via adjudication | Held: AG may change interpretive policy by adjudication; rulemaking not required |
Key Cases Cited
- Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) (discussing effect of state vacatur and Board’s Pickering test)
- Ross v. Blake, 136 S. Ct. 1850 (2016) (statutory interpretation principles)
- NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (agency discretion to choose adjudication vs. rulemaking)
- Chisholm v. F.C.C., 538 F.2d 349 (D.C. Cir. 1976) (agency may reverse prior adjudicative interpretations)
- Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007) (Congress intended INA conviction definition to focus on original determination of guilt)
- Resendiz‑Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262 (11th Cir. 2004) (discussing effect of state post‑conviction actions on immigration consequences)