Introduction and Overview: Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018)

On April 6, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018) [PDF version]. Below, we will provide a brief summary of the decision before moving to a full discussion in the body of this article.

In 2003, the Board held in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) [PDF version], that a conviction that has been vacated based on a procedural or substantive defect in the underlying criminal proceedings does not qualify as a conviction under the immigration laws (section 101(a)(48)(A) of the Immigration and Nationality Act (INA)). However, a conviction that is vacated for reasons solely related to the defendant’s rehabilitation or immigration hardships is not eliminated from consideration for immigration purposes, which are civil rather than criminal in nature. (Note: Matter of Pickerling was reversed on other grounds by the United States Court of Appeals for the Sixth Circuit in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) [PDF version].)

However, in 2002, the United States Court of Appeals for the Fifth Circuit held in Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) [PDF version], that a vacated conviction remains a valid conviction for immigration purposes regardless of the reason for the vacatur. Despite the fact that every other circuit that considered the issue has followed the Board’s reasoning in Matter of Pickerling, the Fifth Circuit has never reversed Renteria-Gonzalez.

In Matter of Marquez Conde, the Board reaffirmed its decision regarding the validity of vacated convictions for immigration purposes under section 101(a)(48)(A) of the INA and modified its decision to give it nationwide effect, including in cases arising in the jurisdiction of the Fifth Circuit. Accordingly, the Board declined to follow Renteria-Gonzalez, notwithstanding the fact that the instant case arose in the jurisdiction of the Fifth Circuit.

In this article, we will examine the factual and procedural history of Matter of Marquez Conde, the Board’s analysis and conclusions, and what the decision will mean going forward.

Factual and Procedural History: 27 I&N Dec. at 251-52

The respondent, a native and citizen of Mexico, entered the United States at an unknown time and place. On June 14, 2016, the respondent was convicted of a theft offense in Texas. However, the conviction was then vacated on motion by the respondent and a new trial ordered. Subsequently, the presiding judge granted the State’s motion to dismiss the criminal action against the respondent in its entirety. Accordingly, following the dismissal of the case, the respondent no longer had a criminal conviction under Texas law.

The respondent was placed in removal proceedings and charged as removable under section 212(a)(6)(A)(i) of the INA as an alien who was present in the United States without having been admitted or paroled. The respondent conceded that he was removable and applied for cancellation of removal under section 240A(b)(1) of the INA. Here, the issue arose of whether the respondent’s theft conviction — which was subsequently vacated — still applied for immigration purposes. If the conviction continued to apply notwithstanding the vacatur, the respondent would be statutorily ineligible for cancellation of removal under section 240A(b)(1)(C) because he would have been convicted of an offense described in section 212(a)(2)(A)(i)(I) of the INA.

The respondent and the Department of Homeland Security (DHS) filed a joint brief with the presiding Immigration Judge that argued that the respondent’s conviction had been vacated based on a substantive defect in the underlying criminal proceedings. Accordingly, they reasoned that under Matter of Pickering, the respondent’s vacated conviction was not a “conviction” for purpose of the INA, and that he was therefore not statutorily barred from cancellation of removal under section 240A(b)(1).

However, the Immigration Judge rejected the argument advanced by both parties and concluded that the respondent’s conviction was still valid for immigration purposes. To this effect, the Immigration Judge followed the Fifth Circuit’s decision in Renteria-Gonzalez, as binding because the instant case arose in the jurisdiction of the Fifth Circuit. Under Renteria-Gonzalez, the vacatur of a criminal conviction, regardless of the grounds on which such vacatur is based, does not ameliorate the immigration consequences of the conviction.

Because the Immigration Judge concluded that the respondent’s conviction was still valid under the INA, the Immigration Judge pretermitted (left un-adjudicated) the respondent’s application for cancellation of removal under section 240A(b)(1) of the INA and ordered the respondent removed. The respondent appealed from the Immigration Judge’s decision to the Board. On appeal, the respondent and the DHS submitted a joint brief in support of the respondent’s appeal, arguing that the respondent’s vacated conviction was without effect for immigration purposes.

Background of Litigation on the Issue: 27 I&N Dec. at 252-54

The Board began by discussing Renteria-Gonzalez. As we noted in the introduction, the Fifth Circuit held that a vacated criminal conviction counts for immigration purposes regardless of the reason for the vacatur. The Renteria-Gonzalez panel based its decision on the fact that the plain language of section 101(a)(48)(A) of the INA — which defines the term “conviction” for immigration purposes — does not include an exception for vacated convictions.

Interestingly, in Renteria-Gonzalez, Judge Fortunato Benavides had issued a concurring opinion wherein he agreed with the result reached in the case but disagreed with the panel’s sweeping holding that section 101(a)(48)(A) encompasses all vacated convictions. Instead, he took the position 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 INA] is entirely dicta in that the case at bar did not involve such a vacatur.” Id. at 823 n.4. Judge Benavides took the position that, because the issue in Renteria-Gonzalez did not involve a conviction that was vacated on the merits (e.g., based on a procedural or substantive defect in the underlying proceedings), the Fifth Circuit’s broader statement on vacated convictions was not binding in cases involving convictions that were vacated on the merits.

In 2003, the Board issued its own decision on the issue in Matter of Pickerling, a case arising outside the jurisdiction of the Fifth Circuit. In that case, the Board took a narrower approach to vacated convictions than did the Fifth Circuit. The Board held that where a conviction is vacated based on a procedural or a substantive defect, the conviction no longer counts for immigration purposes. However, in a case where a conviction is vacated solely for purposes relating to the rehabilitation of the defendant or where the vacatur is based on immigration hardships, the vacated conviction still counts as a conviction for purposes of section 101(a)(48)(A), notwithstanding the vacatur. The Board excerpted the critical part of Matter of Pickerling, 23 I&N Dec. at 624:

For these reasons, the Board declined to follow Renteria-Gonzalez outside of cases arising in the jurisdiction of the Fifth Circuit. The Board reaffirmed this position in Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006) [PDF version].

Every Federal circuit court aside from the Fifth has adopted the Board’s precedent in Matter of Pickering. The decision in Matter of Marquez Conde listed these decisions: Viveiros v. Holder, 692 F.3d 1, 3 (1st Cir. 2012) [PDF version]; Saleh v. Gonzales, 495 F.3d 17, 21-25 (2d Cir. 2015) [PDF version]; Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 245 (3d Cir. 2006) [PDF version]; Dung Phan v. Holder, 667 F.3d 448, 452-53 (4th Cir. 2012) [PDF version]; Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006) [PDF version]; Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005) [PDF version]; Andrade-Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016) [PDF version]; Nath v. Gonzales, 467 F.3d 1185, 1188-89 (9th Cir. 2006) [PDF version]; Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005) [PDF version]; and Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006) [PDF version].

Before the Board in the instant case, the respondent and the DHS argued that the Fifth Circuit itself had subsequently expressed concerns over the scope of its decision in Renteria-Gonzalez. Notably, in Discipio v. Ashcroft, 369 F.3d 472, 474 (5th Cir. 2004) [PDF version], vacated on reh’g, 417 F.3d 448 (5th Cir. 2005) [PDF version], a decision authored by Judge Benavides (who had concurred in judgment in Renteria-Gonzalez, but who had disagreed with the breadth of the holding), the panel took the position that Renteria-Gonzalez did not “hold or imply that a conviction vacated because of procedural or substantive flaws is a conviction under the [INA].” The Fifth Circuit in Discipio noted that the Renteria-Gonzalez majority was concerned with judges exercising “unbridled discretion” in vacating convictions and thus frustrating the national objective of the uniform application of the immigration laws. However, in Discipio, the Court took the position that “unbridled discretion” was not an issue in cases where a conviction is vacated “because of defects in the underlying criminal proceeding…” However, the Fifth Circuit in Discipio nevertheless had concluded that it could not actually revisit Renteria-Gonzalez. The court’s reasoning was that a three-judge circuit court panel cannot overrule decisions of a separate three-judge panel and could not “hold that a prior decision applies only on the limited facts set forth in that opinion.” Instead, only an en banc panel of the full court can overrule precedent decisions issued by three-judge panels.

The alien petitioner in Descipio subsequently petitioned for the Fifth Circuit to hear the case en banc. In response to this petition, the Government informed the Fifth Circuit that it was “prepared to modify its position” in response to Matter of Pickerling. Discipio, 417 F.3d at 449-50. The Fifth Circuit granted the Government’s petition for remand for purpose of terminating removal proceedings. In addition, the Government stated that it had begun a policy review regarding the handling of appeals in immigration cases involving vacated convictions arising in the jurisdiction of the Fifth Circuit.

In Gaona-Romero v. Gonzales, 497 F.3d 694, 694 (5th Cir. 2007) (per curiam) [PDF version], the Fifth Circuit noted that the Government had taken the position that it would no longer seek to have removal decisions upheld if the removal order relied on the holding of Renteria-Gonzalez. In such cases, the Government stated that it would seek remand so that it could take action consistent with the narrower Matter of Pickering decision.

Yet, despite these developments, Renteria-Gonzalez continued to be binding precedent in the Fifth Circuit. For example, in Garcia-Maldonado v. Gonzales, 491 F.3d 284, 291 (5th Cir. 2007) [PDF version], the Fifth Circuit noted that, at that time, several other circuits had ruled in a manner inconsistent with Renteria-Gonzalez on the subject of vacated convictions in the immigration context. However, it declined to follow Matter of Pickering because the law in the Fifth Circuit was as held in Renteria-Gonzalez.

Board Modifies Decision to Apply Matter of Pickering Nationwide: 27 I&N Dec. at 254-55

In light of the facts presented in the instant case and the split between the Fifth Circuit and other circuits regarding Matter of Pickering, the Board saw fit to “consider whether to continue to follow Renteria-Gonzalez in the Fifth Circuit.”

In Renteria-Gonzalez, the Board stated that the Fifth Circuit read the lack of explicit mention of vacated convictions in section 101(a)(48)(A) of the INA as “strongly impl[ying]” that the statute contains no vacated conviction exception. 322 F.3d at 813. In what will prove to be significant, however, the Board noted that it does not appear that the Fifth Circuit had ever considered the language of section 101(a)(48)(A) to be “plain on its face in this regard.” For example, the majority opinion in Renteria-Gonzalez stated that the text, structure, and history of the INA merely “suggest[s] that a vacated conviction does remain valid for purposes of the immigration laws.” Id. at 812.

The Supreme Court of the United States has held that where a statute is silent or ambiguous, the reasonable interpretations of the statute by the administering agency are entitled to deference. The Court established this rule in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) [PDF version]. Chevron sets forth a two-part test. The first question is whether the statute in question is ambiguous or silent as to a specific question at issue. If the statute is ambiguous or silent, a court must then move to assess the administering agency’s interpretation of the statute. If the interpretation is reasonable, it is entitled to deference from courts. If the agency’s interpretation is not a reasonable construction of the statute, it is not entitled to administrative deference by the court.

Chevron does not only apply to agency interpretations of unambiguous statutes in the first instance. In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) [PDF version], the Supreme Court ruled that, where a Court has previously interpreted a statute in one manner but did so without concluding that the statute was unambiguous, an agency’s subsequent interpretation of the statute must be accorded deference consistent with Chevron. However, it is important to note that where a Federal appellate court concludes that a statute is not unambiguous or silent on the question at issue, it is not bound to defer to the agency’s subsequent interpretation of the statute.

The holding of Brand X is pertinent to the instant case because the Fifth Circuit had articulated its own interpretation of section 101(a)(48)(A) one year prior to the Board’s first published decision on the issue in Matter of Pickering. Furthermore, Matter of Pickering was then issued prior to Brand X, meaning that the Board lack the Brand X precedent in considering whether its new construction of section 101(a)(48)(A) should apply to cases arising in the jurisdiction of the Fifth Circuit (however, note that the Board reaffirmed Matter of Pickering’s application outside of the Fifth Circuit in Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006), which was issued subsequent to Brand X).

As we noted, the Board in the instant case found that the Fifth Circuit in Pickering and its progeny had not conclude that the language of section 101(a)(48)(A) was “plain on its face,” or in other words, unambiguous. In support of this finding, the Board noted that the Fifth Circuit had based its interpretation of section 101(a)(48)(A) upon a finding that it “suggested,” rather than necessitated, its conclusion.

Therefore, and in accord with Chevron and Brand X, the Board formally found that section 101(a)(48)(A) of the INA is completely silent as to whether vacated convictions bear on an alien’s immigration status. In then interpreting the statute, the Board reaffirmed its decision from Matter of Pickering, holding that the term “conviction” under the INA does not encompass convictions that were vacated based on procedural and substantive defects in the underlying criminal proceedings.

Following Chevron and Brand X, the Board modified its holding in Matter of Pickering to apply it to cases arising in the jurisdiction of the Fifth Circuit.

As a result of its conclusions, the Board sustained the respondent’s appeal and remanded the record to the Immigration Judge for hearings on the respondent’s eligibility for cancellation of removal and other form(s) of relief or protection for which he may be eligible.

Conclusion

Matter of Marquez Conde only represents a new rule for cases arising in the jurisdiction of the Fifth Circuit, which covers the states of Louisiana, Mississippi, and Texas. Because all other circuits already followed Matter of Pickering, Matter of Marquez Conde does not represent a new rule in other parts of the country.

The decision represents an interesting example of the Board applying its own precedent over the existing precedent of a Federal circuit court under both Chevron and Brand X. In order to do this, the Board first had to conclude that the Fifth Circuit had not found that section 101(a)(48)(A) was unambiguous, then provide the Board’s own plausible reading, and finally take conclude that the Board’s reading was entitled to deference. It remains to be seen whether the Fifth Circuit accepts the Board’s reasoning in Matter of Marquez Conde or whether it concludes that the statute is unambiguous and reaffirms its prior precedent in Renteria-Gonzalez.

When an immigration matter involves a vacated conviction, this decision highlights the importance of consulting with an experienced immigration attorney. Although the criminal and immigration fields are separate, an experienced immigration attorney will be able to determine whether a vacated conviction will be likely to remain effective for immigration purposes based on the circumstances of the situation. An alien who is facing removal proceedings for any reason should consult with an experienced immigration attorney immediately.