News From The Courts

In Re Chambers, BIA Decision, December 22, 2004. 

The Respondent was convicted of an aggravated felony and was ordered removed under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act. The Department of Homeland Security did not immediately remove the respondent from the United States, and the Respondent's conviction, which was the sole basis of his removability, was vacated. The Respondent sought to reopen the removal order, arguing that he no longer had a conviction to support the sole charge of removability. The Respondent provided in support of his motion court documents showing that the conviction was vacated on the basis of "a violation of the Petitioner's constitutional due process rights during the juvenile waiver hearing." The Board of Immigration Appeals cited Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000), stating that a distinction is made concerning how a criminal conviction is vacated, and that distinction controls whether or not a vacated conviction is considered for immigration purposes. Convictions that are vacated based upon a procedural or substantive defect in the underlying proceedings are eliminated for immigration purposes, while those vacated because of post-conviction events, such as rehabilitative goals or equitable relief, are not. 

The Respondent's vacated conviction order stated that it was based on a violation of his due process rights, and as such, was of the distinction so that it eliminated the conviction from consideration for immigration purposes. The Board held that the motion would be granted since the Respondent was no longer convicted of an aggravated felony, and was therefore no longer removable under section 237(a)(2)(A)(iii).



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