Vacated Convictions and Immigration: A Victory for Plain Language
The Trump Administration and its Republican allies like to paint all immigrants as criminals, regardless of the facts. So, is it any surprise that U.S. immigration law has long treated even immigrants whose criminal convictions had been vacated as too dangerous to allow into our country?
Luckily, some semblance of sanity returned to the field of immigration law this week, when the U.S. Court of Appeals for the Fourth Circuit overruled the 2003 Board of Immigration Appeals (BIA) decision that had created the rule that vacated criminal convictions still counted for immigration purposes.
Going forward, at least in the Fourth Circuit—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia—if a conviction has been vacated, it no longer serves as an immigration bar.
How the End of Chevron Deference Changed Immigration Law
A little background is in order: For four decades, when a law was vague or ambiguous, courts were required to defer to an executive branch agency’s interpretation of the statute. The theory underlying this rule, established in the case of Chevron v. NRDC, was that agency officials possess subject matter expertise in their areas of jurisdiction that courts lack.
Two years ago, however, in the case of Loper Bright Enterprises v. Raimondo, the Supreme Court overturned Chevron and held that courts no longer owed agencies this deference and could instead conduct their own legal analysis on matters of statutory interpretation.
This week, the U.S. Court of Appeals for the Fourth Circuit did just that, overruling the 2003 BIA decision In re Pickering and changing the rules governing whether vacated criminal convictions should impact a person’s immigration case.
How Matter of Pickering Treated Vacated Convictions in Immigration Cases
The Pickering case has always been an example of a Board so eager to exclude immigrants that it thoroughly distorted the meaning of the word “conviction.” In the 2003 case, the BIA denied the appeal of a Canadian immigrant who had a 23-year-old conviction for LSD in his home country, even though a Canadian court had quashed the conviction six years earlier.
The Board ruled that the Canadian court had only expunged the conviction for the express purpose of allowing the respondent’s U.S. immigration case to move forward and not for any defect in the underlying conviction, and therefore Mr. Pickering remained “‘convicted’ for immigration purposes” and therefore ineligible for an adjustment of status, despite no longer actually being convicted.
The Fourth Circuit’s New Rule for Vacated Convictions and Immigration
No longer required to defer to the BIA’s tortured analysis, the Fourth Circuit considered the issue “with fresh eyes” in the case of Lizbeyde Yanez Piedra, a woman appealing a BIA ruling that found her 2006 conviction for marijuana possession to count for immigration purposes, despite the conviction having been vacated.
The appellate court established a new common sense rule: if a conviction has been vacated, it no longer counts for immigration purposes. The opinion, written by Trump appointee Judge Julius N. Richardson, revealed the absurdity of the Pickering framework by considering some analogous situations:
If a restaurant extends a military discount to “any person married to an active-duty service member,” we would not expect a soldier’s ex-wife to receive a discount. If an airline limits its pilot applications to “any person licensed to fly commercial airplanes,” a person whose license has lapsed should not expect a callback. And if a company provides a year-end bonus to “any person employed full-time by the company,” the company need not give a bonus to a part-time employee who used to work full-time.
In each example, the text and context of the policy suggest that the relevant characteristic must currently apply.
What the Fourth Circuit Decision Means for Immigrants With Vacated Convictions
This new rule is welcome news to our team at Benach Pitney Reilly. If you or a loved one has a prior conviction that you fear will doom your immigration case, please contact us. We can provide an honest assessment and a clear explanation of the issues, challenges, and processes to achieve your immigration goals.