Introduction: Matter of Thomas and Thompson, 27 I&N Dec. 556 (A.G. 2019)

On May 28, 2019, Attorney General William Barr directed the Board of Immigration Appeals (BIA) to refer two of its unpublished decisions to him for review. His decision is published as Matter of Thomas and Thompson, 27 I&N Dec. 556 (A.G. 2019) [PDF version]. The Board’s decisions in both cases are automatically stayed pending the Attorney General’s review.

Question Presented

The Attorney General requested briefing from the parties in the cases and interested amici on the following question:

[W]hether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled ‘vacatur,’ ‘modification,’ ‘clarification,’ or some other term-should be taken into consideration in determining the immigration consequences of the conviction.

Briefing Schedule

The parties shall file briefs not exceeding 15,000 words on or before June 28, 2019.
Interested amici may submit briefs not exceeding 9,000 words on or before July 12, 2019.
The parties may submit rely briefs not exceeding 6,000 words on or before July 12, 2019.

Analysis

The Attorney General’s consideration of the issues presented in Matter of Thomas and Thompson could have very significant effects for aliens potentially facing removal due to criminal convictions. In certain cases, an alien with a criminal conviction that would subject him or her to removal from the United States may seek to have the conviction vacated, modified, clarified, or something similar to ameliorate its immigration consequences. The effect that such a move has on immigration proceedings depends on the alien’s immigration disposition and the reason for the change to the criminal conviction. The Attorney General’s referral indicates that he is considering clarifying, and potentially limiting, the effects of various kinds of conviction vacaturs or modifications will have in the immigration context. Given the vast number of immigration cases that such a decision would reach, this case will bear watching going forward. It will likely be at least a couple of months until the Attorney General renders his decision.

The referral also indicates that Attorney General Barr will follow former Attorney General Jeff Sessions and acting Attorney General Matthew Whitaker in making liberal use of his vast authority to review BIA decisions and establish new immigration precedents. There remain several pending cases before the Attorney General.

Conclusion

It is impossible to know the exact rules that may come from a final decision in Matter of Thomas and Thompson. An alien with a criminal conviction or facing criminal charges should consult with an experienced immigration attorney for case-specific guidance on the effect that the conviction may have on his or her immigration status. Any alien placed in removal proceedings should consult with an experienced immigration attorney immediately.

To learn more about related issues, please see our website’s growing sections on criminal aliens [see category] and removal and deportation defense [see category].