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If a State court’s nunc pro tunc order modifies or amends the subject matter of a conviction based on a procedural or substantive defect in the underlying criminal proceedings, the original conviction is invalid for immigration purposes and we will give full effect to the modified conviction; however, if the modification or amendment is entered for reasons unrelated to the merits of the underlying proceedings, the modification will not be given any effect and the original conviction remains valid. 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), followed.
Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.
Matter of Mogtabi Hassan AZRAG, 28 I&N Dec. 784 (BIA 2024)
Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.
The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.
State court orders that vacate, modify, or otherwise alter a noncitizen’s criminal conviction or sentence 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.” Matter of Thomas and Thompson, 27 I&N Dec. 674, 675 (A.G. 2019); see also Andrade-Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016) (“If a court vacates an alien’s criminal conviction for a reason unrelated to the merits of the case—such as to avoid immigration consequences or for rehabilitative reasons—rather than to correct a procedural or substantive defect, the conviction will still stand for immigration purposes despite its vacatur.” (citing 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))).
Under our case law, reopening is warranted only if the conviction was legally unsound in the jurisdiction where it was entered at the time it was entered—put differently, where there was a “procedural or substantive defect” relating to the “merits” of the conviction. Matter of Pickering, 23 I&N Dec. at 624. In determining whether a conviction was vacated based on a procedural or substantive defect, we consider the law under which the 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.” Id. at 625.