Matter of Michael Vernon THOMAS, Respondent Matter of Joseph Lloyd THOMPSON, Respondent
U.S. Department of Justice Office of the Attorney General
October 25, 2019
27 I&N Dec. 674 (A.G. 2019)
Interim Decision #3966
(2) Such state-court orders will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding; these orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.
BEFORE THE ATTORNEY GENERAL
On May 28, 2019, I directed the Board of Immigration Appeals (“Board“) to refer this case for my review and invited the parties and interested amici to submit briefs addressing relevant questions. Matter of Thomas & Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019).
For the reasons set forth in the accompanying opinion, I overrule the Board‘s decisions in Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005); Matter of Song, 23 I&N Dec. 173 (BIA 2001); and Matter of Estrada, 26 I&N Dec. 749 (BIA 2016). The tests described in those cases will no longer govern the effect of state-court orders that modify, clarify, or otherwise alter a criminal alien‘s sentence. Instead, for reasons similar to those explained in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev‘d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), such state-court orders will be given effect for immigration purposes only when the orders are based on a procedural or substantive defect in the underlying criminal proceeding. These state-court orders will have no effect for immigration purposes when based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or immigration hardship.
Accordingly, I vacate the decisions below and remand these cases to the Board to reassess whether the relevant state-court sentence alterations should be effective for purposes of federal immigration law.
If the order “vacates” an alien‘s conviction, then the order has legal effect if based on “a procedural or substantive defect in the underlying proceedings,” but not if based on reasons “unrelated to the merits” such as “rehabilitation or immigration hardships.” Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003), rev‘d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). If the order “modifies” an alien‘s sentence, then the modification is given “full . . . faith and credit” for immigration purposes regardless of the reason. Matter of Cota-Vargas, 23 I&N Dec. 849, 850-52 (BIA 2005); see also Matter of Song, 23 I&N Dec. 173 (BIA 2001). Finally, if the order “clarifies” an alien‘s sentence, then an immigration judge assessing the order‘s effect considers several characteristics of the order, such as whether the original sentencing order contained an obvious discrepancy and whether the clarifying court had jurisdiction to enter the order. Matter of Estrada, 26 I&N Dec. 749, 755-56 (BIA 2016). Adding to the confusion, the classification of a state-court order as a modification or clarification may turn on how the state court itself labels the order, not on any objective distinctions between the two categories.
The tests articulated in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada have no basis in the text of the Immigration and Nationality Act (“INA“), promote inconsistency in the application of the country‘s immigration laws, and fail to advance Congress‘s intent to attach immigration consequences to certain convictions and sentences. Accordingly, those cases are overruled. Going forward, immigration courts should apply the test articulated in Matter of Pickering in determining the immigration consequence of any change in a state sentence, no matter how the state court describes its order. Such an alteration will have legal effect for immigration purposes when based on a procedural or substantive defect in the underlying criminal proceeding, but not when the change was based on reasons unrelated to the merits, such as the alien‘s rehabilitation or an interest in avoiding an immigration consequence.
A.
Congress has provided that an alien‘s conviction for certain serious crimes, which result in a sentence of imprisonment of sufficient length, shall have consequences for an alien‘s immigration status. Notably, the INA defines an “aggravated felony” to include a “crime of violence” for which “the term of imprisonment [is] at least one year,” see
Under existing Board precedent, the immigration consequences of such a state-court order depend on the precise form of relief granted by the court. First, if the state court vacates the alien‘s conviction, then the Board applies the test set forth in Matter of Pickering, 23 I&N Dec. 621. In Pickering, the Board concluded that there is a “significant distinction” between vacaturs based on a “procedural or substantive defect in the underlying proceedings,” and those based on “post-conviction events, such as rehabilitation or immigration hardships.” Id. at 624. The former circumstance calls into question whether the original conviction was valid, but the latter does not. Hence, under Pickering, “if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a ‘conviction’ as that term is defined in the INA. If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, [then] the respondent remains ‘convicted’ for immigration purposes.” Id.
By contrast, if the state court modifies the alien‘s sentence, rather than vacating the alien‘s conviction, then the Board follows the rule set forth in Matter of Song, 23 I&N Dec. at 173-74, and Matter of Cota-Vargas, 23 I&N Dec. at 851-52. Under those decisions, the immigration judge will
Finally, if the state court “clarifies” an alien‘s sentence, then the Board considers the characteristics of the order discussed in Matter of Estrada, 26 I&N Dec. 749. There, the respondent initially had received a twelve-month sentence, but it was not clear whether the sentence was for “probation” or for a “probated term of imprisonment“—only the latter of which would have counted as a term of imprisonment under the INA. The respondent successfully petitioned the state court to “[c]larify[]” that the sentence was solely for probation. See id. at 755. In deciding whether to give effect to the order, the Board considered several characteristics previously identified as relevant by the Eleventh Circuit. See id. (citing Herrera v. U.S. Att‘y Gen., 811 F.3d 1298 (11th Cir. 2016); United States v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013)). These characteristics include whether the original sentencing order contained an obvious discrepancy; whether the original judge was the same as the clarifying judge; whether a significant period of time had passed between the original sentencing and the clarification; and whether the clarifying court had jurisdiction to enter the clarification. Id. at 755-56. The Board then observed that, in the case before it, the alien‘s original sentencing order was legitimately unclear and the clarifying order had been issued by the same judge who had initially sentenced the alien. Id. For these reasons, the Board gave effect to the order and concluded that the alien was not removable. Id. at 756.
Taken together, these Board decisions establish three distinct tests governing the immigration consequences of state-court orders that retroactively alter a criminal conviction or sentence. These tests are inconsistent with each other, and they cause similarly situated aliens to
B.
1.
In Matter of Michael Vernon Thomas, the respondent, a citizen of Trinidad and Tobago, had been living in the United States as a lawful permanent resident since 1977. In 2001, a Georgia state court convicted Thomas of family violence battery, see
While Thomas‘s appeal was pending, he petitioned a Georgia state court to alter his criminal sentence. Thomas did not allege any procedural or substantive defect in the original criminal proceeding, which occurred over fifteen years before, but upon the consent of the prosecution, the state court issued an order stating, “Defendant‘s sentence in the above matter is hereby clarified to reflect that Defendant was sentenced to a cumulative term of 11 months and 28 days of probation.” The Board then remanded for the immigration judge to review the impact of the consent order.
The immigration judge declined to credit the order, and the Board affirmed. Because the order “clarified” Thomas‘s sentence, the Board considered the characteristics of the order identified as relevant in Matter of Estrada. The Board observed that—in contrast to the situation of the alien in that case—Thomas‘s original sentencing order was clear; a significant period of time (approximately fifteen years) had passed between the original sentence and the clarification; and the state-court judge clarifying the sentence differed from the original sentencing judge. The Board thus declined to credit the “clarification” of Thomas‘s sentence, and he was deemed removable.
2.
In Matter of Joseph Lloyd Thompson, the respondent, a citizen of Jamaica, was lawfully admitted to the United States in 1987. In 2012, a Georgia state court convicted Thompson of family violence battery, see Ga.
In March 2018, while the removal charges were pending, Thompson filed a “Motion to Modify Sentence” in Georgia state court seeking to reduce his sentence to eleven months and twenty-seven days. Thompson did not identify any defect in the original criminal proceeding, but the court granted the motion the same day. Before the immigration judge, Thompson admitted that he had been convicted of a crime of violence, yet argued that his modified sentence did not amount to a term of imprisonment of at least one year.
After the immigration judge rejected Thompson‘s argument, the Board reversed on appeal. The Board acknowledged that there were questions concerning whether the Georgia state court had jurisdiction to issue the order and that the timing of the order suggested that it may have been issued to affect the immigration court proceeding. But under Matter of Cota-Vargas, the Board concluded that it must “give full effect” to the modified sentence. Thus, in contrast with Matter of Thomas, the Board gave effect to the post-sentencing state-court order and concluded that Thompson was no longer removable.
3.
Both Thomas and Thompson were convicted of the same state law offense, were charged with removability on the same ground, and petitioned the state courts to alter their sentences without alleging any procedural or substantive defects in the original proceeding. Yet these similarly situated aliens faced markedly divergent consequences. Relying on a semantic distinction between a “clarification” and a “modification,” the Board found that Thomas was removable but Thompson was not. I certified these cases to address these inconsistencies and to clarify the appropriate treatment under the INA. See 27 I&N Dec. 556 (A.G. 2019).1
The INA assigns clear immigration consequences to an alien who has been convicted and sentenced for a state crime, yet the Board has adopted multiple tests that permit state courts to change those results well after the fact. Although a state court may alter a state conviction for appropriate reasons under state law, the state court does not have the authority to make immigration-law determinations. In view of these considerations, I conclude that the Pickering test should apply to state-court orders that modify, clarify, or otherwise alter the term of imprisonment or sentence associated with a state-court conviction. As a result, such alterations will have legal effect for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship. Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore be overruled.
A.
1.
In considering whether a state-court order that modifies, clarifies, or otherwise alters a “term of imprisonment or a sentence” should change the immigration consequences of the original sentence, we begin with the text of the statute. E.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The INA defines “conviction” and a “term of imprisonment or a sentence” as follows:
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of
the imposition or execution of that imprisonment or sentence in whole or in part.
- a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt;
- the judge has ordered some form of punishment, penalty, or restraint on the person‘s liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver‘s license, deprivation of nonessential activities or privileges, or community service); and
- a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court‘s order, without availability of further proceedings regarding the person‘s guilt or innocence of the original charge.
Id. at 551-52. Under Ozkok‘s definition of “conviction,” “it was possible for a defendant to plead nolo contendere, obtain a suspended sentence, or enter a rehabilitation program on probation—so long as the court stopped short of a formal adjudication of guilt—without having the offense be considered a conviction for purposes of immigration laws.” Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir. 2006). Applying this definition “required an individualized analysis of the particular procedures of different state penal systems to determine whether a person had been ‘convicted.‘” Id.
In enacting
This statutory history confirms that, under paragraph (A), an alien‘s original adjudication or admission of guilt establishes the fact of his “conviction.” The remainder of the definition, paragraph (B), similarly contains language making clear that the length of a “term of imprisonment or a sentence” is calculated “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”
This reasoning, which supports the Pickering test, should likewise extend to all state-court modifications, clarifications, and other alterations of a criminal sentence. If the original sentence was altered because of a legal defect, then the sentence was not legally effective, and there is no valid sentence to which immigration consequences can attach. The original sentence—because of the defect—should not have been entered in the first place. If, in contrast, a state court later alters an earlier sentence for rehabilitative or immigration reasons, then the immigration consequences of that sentence under
Said differently, Congress has determined that an alien who is convicted of a crime that is sufficiently serious to warrant a significant sentence should be subject to removal. Later alterations to that sentence that do not correct legal defects, do not change the underlying gravity of the alien‘s action. They accordingly do not affect Congress‘s judgment as to whether that alien should be removed. Such an alteration therefore should have no effect for purposes of the immigration laws. Cf. id. at 25 (“When a conviction is amended nunc pro tunc solely to enable a defendant to avoid immigration consequences, in contrast to an amendment or vacatur on the merits, there is no reason to conclude that the alien is any less suitable for removal.“). Applying the Pickering test to all sentence alterations thus ensures that aliens who have committed significant crimes, as identified by Congress, do not later avoid the immigration consequences of those actions.
Furthermore, the application of a single test to state-court sentence alterations promotes uniformity in the law. In the cases currently under review, for example, applying the Pickering test should avoid the inconsistent results that apply to the two similarly situated respondents. If neither state court altered the respondent‘s sentence on the basis of “a procedural or substantive defect in the underlying proceedings,” see Pickering, 23 I&N Dec. at 624, then the Pickering test would dictate the same immigration consequence for both respondents.
In addition, applying the Pickering test to all forms of state-court sentence alterations resolves inconsistencies among the states’ “crazy quilt of . . . widely disparate state rehabilitative and diversionary arrangements.” Herrera-Inirio, 208 F.3d at 305; see also, e.g., Pinho v. Gonzales, 432 F.3d 193, 205 (3d Cir. 2005) (observing that the Board in the past has been
2.
In reaching this conclusion, I have considered the Board‘s reasons for adopting the Cota-Vargas and Estrada tests, but I find them unpersuasive. In Matter of Song, the Board offered little analysis before giving full effect to state-court modifications, and it did not ground that rule in any facet of the text of the INA. See 23 I&N Dec. 173. In Matter of Cota-Vargas, the Board acknowledged that the “language and purpose of section 101(a)(48)(A)” support applying the Pickering rule to sentence alterations, see 23 I&N Dec. at 852, but found it relevant that paragraph (B) addresses “suspensions” and not “modifications.” Based upon this statutory silence, the Board inferred a congressional intent to credit state-court modifications that were unrelated to the merits of a criminal proceeding. See id. Yet paragraph (A)‘s definition of “conviction” is equally silent about “vacaturs,” and the Board nonetheless determined in Matter of Pickering that vacaturs unrelated to the merits will not have immigration consequences. See 23 I&N Dec. at 624. Paragraph (A) and paragraph (B) simply do not address vacaturs, modifications, or clarifications. This silence, however, provides no reason to depart from Congress‘s focus on the alien‘s original conviction and sentence in either of those provisions.
I likewise do not believe that the Estrada test finds any more support in the INA. There, the Board considered a number of characteristics in assessing the effect of a clarification, yet none of them flows directly from the text of the INA itself, see 26 I&N Dec. 755-56, and reliance on such
B.
In extending the Pickering test to all forms of sentence alterations, I have also considered and rejected several additional arguments pressed by the respondents.
1.
The respondents first argue that requiring immigration judges to assess the reasons that a state court altered a criminal alien‘s sentence would require them to act as fact-finders in matters of state criminal law with which they have little familiarity. The Pickering test, however, already requires immigration judges to assess the administrative record and make determinations about the reasons that certain state-court orders were entered. See 23 I&N Dec. at 625 (examining “the law under which the [post-conviction] court issued its order,” “the terms of the order itself,” and “the reasons presented by the respondent in requesting that the court vacate the conviction“). The extension of the Pickering test to state-court sentence alterations raises no new concerns about the role of immigration judges in assessing the record.
Moreover, the evidence on which immigration judges will rely when assessing state-court sentence alterations will typically be readily available in the record and should require little interpretation of state law. The application of the Pickering test demonstrates as much, as adjudicators applying it frequently determine whether a vacatur is valid for immigration purposes by assessing the text of the order of vacatur itself or the alien‘s motion requesting the vacatur. See, e.g., Al-Najar v. Mukasey, 515 F.3d 708, 716 (6th Cir. 2008) (declining to give effect to a vacatur because of “the absence of any substantive legal basis cited in [the alien‘s] motion“); Sanusi
2.
The respondents next contend that the Full Faith and Credit Act,
First, Congress may define terms such as “conviction” for the purposes of federal law in a way that differs from the definition attached to such terms by state courts. Thus, in deciding whether a vacated conviction remains effective for immigration purposes, an immigration judge or the Board merely applies and upholds the definition of conviction in the INA. The adjudicator is not reevaluating or otherwise questioning the validity of the state-court judgment. The adjudicator accordingly does not violate the Full Faith and Credit Act. See Saleh, 495 F.3d at 26 (“[T]he BIA is simply interpreting how to apply Saleh‘s vacated State conviction for receiving stolen property to the INA and is not refusing to recognize or relitigating the validity of Saleh‘s California state conviction. The full faith and credit statute is not thereby violated.“); Herrera-Inirio, 208 F.3d at 307 (“Neither the Full Faith and Credit Clause nor the statutory overlay ‘purports to prevent federal legislative authorities from writing federal statutes that differ from state statutes or from attaching, to words in a federal statute, a meaning that differs from the meaning attached to the same word when used in a statute enacted by a state.‘” (quoting Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) (Breyer, J.))).
The respondents attempt to avoid this result on the ground that Matter of Pickering‘s interpretation of “conviction” is required by paragraph (A) of
The respondents’ argument also fails for the second reason that the Full Faith and Credit Act does not apply to federal agencies. By its own terms, that statute provides that “[a]cts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”
The foregoing observations also dispose of the respondents’ broader argument that—even apart from the Act—an immigration judge‘s assessment of state-court sentence alterations would contravene principles of federalism and comity. Contrary to respondent Thompson‘s argument, an immigration judge‘s evaluation of the reasoning behind a state-court alteration of an alien‘s sentence does not “arrogate” to the federal government “the power to determine the effectiveness of state court orders.” Instead, as explained above, the immigration judge in such a case simply determines the effect of that order for the purposes of federal immigration law. See Matter of Velasquez-Rios, 27 I&N Dec. 470, 474 (BIA 2018) (“We must use Federal law, rather than State law, to determine the immigration consequences of [a] respondent‘s . . . conviction.” (emphases in original)). The state-court order itself remains effective and unchallenged for all other purposes, and there accordingly exists no intrusion on state law of the sort that principles of federalism and comity are designed to prevent.
3.
The respondents finally argue that, in determining the impact that a state-court alteration of a sentence should have on the immigration laws, the Attorney General should proceed through rulemaking rather than adjudication. But given that the Board itself adopted its prior tests precisely in the context of administrative adjudications, I do not believe that there is a need for a regulation here. Indeed, Supreme Court precedent confirms my authority as agency head to proceed by adjudication, and my authority here derives from the text of the relevant provisions in the INA.
The Supreme Court has long recognized that agencies may decide whether to announce reinterpretations of a statute through rulemaking or through adjudication. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (“[T]he choice between rulemaking and adjudication lies in the first
C.
Finally, although I did not request briefing on the subject, the parties to this case have addressed which side should carry the burden of proof when it comes to establishing the state court‘s reason for altering a sentence under the Pickering test. The Board and the courts of appeals have considered this issue in applying Matter of Pickering to vacaturs of convictions, and they have allocated the burden in different ways, depending on the procedural posture of the case at hand. See, e.g., Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir. 2016) (the alien bears the burden to prove that a conviction was vacated because of a procedural or substantive defect when applying for cancellation of removal); Barakat v. Holder, 621 F.3d 398, 403-04 (6th Cir. 2010) (the government bears the burden to prove that a conviction was vacated for reasons other than a procedural or substantive defect when seeking to establish that an alien is removable); Rumierz v. Gonzales, 456 F.3d 31, 37 (1st Cir. 2006) (the alien bears the burden to prove that a conviction was vacated because of a procedural or substantive defect when seeking to reopen removal proceedings).
The parties to this appeal dispute how these principles should apply in the context of sentence alterations, but I did not request briefing on this issue. See 27 I&N Dec. 556. In the absence of such a request, I decline to address the burden-shifting issue anew and thus leave undisturbed the existing body of law applying the Pickering test.
III.
For the reasons explained, the Board‘s decisions in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada are overruled. The tests described in those cases will no longer govern the immigration-related effects of state-court orders that modify, clarify, or otherwise alter a criminal alien‘s sentence. Instead, such state-court orders will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding. These orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.
Because the Board‘s decisions in Matter of Michael Vernon Thomas and Matter of Joseph Lloyd Thompson were based on these earlier precedents, I vacate the Board‘s decisions below and remand these cases to the Board to assess the state-court alterations in light of the Pickering test. I do not doubt that it would be the rare case where a state court‘s alteration of an old sentence by three or four days (as in respondents’ cases) would reflect a necessary remedy for a fundamental legal defect, rather than an exercise of the trial judge‘s sentencing discretion. But insofar as the parties litigated these cases under the earlier precedents, I do not wish to foreclose any available arguments in that regard. On remand, the Board may review the evidence in the record, and consider any appropriate requests to reopen the