In the Matter of Jose MARQUEZ CONDE, Respondent

BIA Applies Matter of Pickering on a Nationwide Basis

The BIA Sustained the respondent's appeal and remanded the case to the immigration judge for further proceedings, stating that its holding in Matter of Pickering, regarding the validity of vacated convictions on the basis of a procedural or substantive defect in the underlying proceedings for immigration purposes, is reaffirmed as, and the decision is modified to give it nationwide application. Thus, if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a "conviction" within the meaning of section 101(a)(48)(A).

There is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships. Thus, if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a "conviction" within the meaning of section 101(a)(48)(A). If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains "convicted" for immigration purposes.

USCIS Interim Decision #3493 Policy Memo

USCIS restates the BIA:

(1) If a court vacates an alien's conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.