CA9 on Vacated Convictions: Ballinas-Lucero v. Garland

Ballinas-Lucero v. Garland

"We hold that under Pereida v. Wilkinson, 141 S. Ct. 754 (2021), an applicant for cancellation of removal bears the burden of proving that a state-court conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reasons. We hold, further, that Ballinas-Lucero carried this burden of proof. The record compels a finding that the Superior Court vacated his six misdemeanor convictions because of substantive or procedural defects in the criminal proceedings, and did not do so solely for immigration purposes or for rehabilitative or equitable reasons. After vacatur of his six misdemeanor convictions, Ballinas-Lucero was convicted of a single misdemeanor that may qualify for the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), which would render him statutorily eligible for cancellation of removal. We therefore grant the petition for review and remand the case to the BIA so that it may decide in the first instance whether Ballinas-Lucero’s single petty theft conviction is a conviction that falls within the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), and whether he satisfies the other statutory criteria for cancellation of removal under 8 U.S.C. § 1229b(b)(1). ... Despite the clarity of Ballinas-Lucero’s Memorandum, and of the criteria in § 1018, the BIA found the “absence of any statement by the court regarding the reasons for permitting the withdrawal of the respondent’s guilty plea” to be dispositive. This was error. As the Attorney General stated in In re Thomas, adjudicators applying the “Pickering test . . . 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.” 27 I&N Dec. at 685 (emphasis added). The record before the BIA compels a conclusion, contrary to that of the BIA, that the Superior Court vacated Ballinas-Lucero’s six misdemeanor convictions because of legal defects in his pleas. Because the BIA’s finding regarding the Superior Court’s dismissal of Ballinas-Lucero’s convictions was not supported by substantial evidence, we grant the petition for review. We remand to the BIA for further proceedings to determine in the first instance (1) whether Ballinas-Lucero’s remaining conviction under Cal. Penal Code § 368(d) qualifies as a CIMT, and if so, whether the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II) applies to it; and (2) whether Ballinas-Lucero satisfies the other statutory requirements for cancellation of removal under 8 U.S.C. § 1229b(b)(1)."

[Hats way off to Richard Lucero!]