Matter of MARQUEZ-CONDE, 27 I&N Dec. 251 (BIA 2018)
BIA HEADNOTE:
The Board of Immigration Appeals’ holding 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), regarding the validity of vacated convictions for immigration purposes, is reaffirmed, and the decision is modified to give it nationwide application. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), not followed.
PANEL; BIA VICE CHAIR JUDGE CHARLES ADKINS-BLANCH; BIA APPELLATE IMMIGRATION JUDGES ANA MANN, EDWARD KELLY
OPINION BY: JUDGE ADKINS-BLANCH, VICE CHAIR
KEY QUOTE:
In Renteria-Gonzalez, the United States Court of Appeals for the Fifth Circuit reasoned that because Congress was silent regarding vacated convictions when it defined the term “conviction” in section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000), it did not intend to include an exception for vacated convictions. Id. at 813. However, as the parties have noted on appeal, Judge Benavides issued a concurring opinion in Renteria-Gonzalez v. INS that he disagreed with the majority’s analysis because it “paint[ed] with too broad a brush with respect to whether a vacated conviction falls within the purview of the definition” of a conviction. Id. at 820 (Benavides, J., specially concurring). Although he agreed with the result, Judge Benavides asserted that “any indication in the majority opinion that a conviction vacated based on the merits constitutes a conviction under [section 101(a)(48)(A) of the Act] is entirely dicta in that the case at bar did not involve such a vacatur.” Id. at 823 n.4. He therefore concluded that he would distinguish the vacatur in that case “from cases involving convictions vacated because of a defect in the criminal proceedings.” Id. at 822.
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Kudos to the BIA for providing this important guidance. Remarkably, the Immigration Judge “ran over” a joint motion by the DHS and respondent’s counsel to reach the absurd result below!
As for the two Fifth Circuit judges who ruled that a conviction vacated on the merits remains a “conviction,” as one of my bosses used to say “What did they teach you at that law school?”
As those who read this blog know, normally I’m not a fan of Chevron or Brand X. But, here they seem to have saved the day from some pretty incompetent/biased judging from some “Article IIIs.’
PWS
04-08-18