Anna Boar v. Eric Holder, Jr. , 475 F. App'x 615 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0407n.06
No. 10-4459
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 13, 2012
ANNA BOAR, )
) LEONARD GREEN, Clerk
Petitioner-Appellant, )
) On Petition for Review From the
v. ) Board of Immigration Appeals
)
ERIC H. HOLDER, JR., UNITED STATES )
ATTORNEY GENERAL, )
)
Respondent-Appellee. )
Before: BOGGS, COOK, and WHITE, Circuit Judges.
BOGGS, Circuit Judge. An immigrant, Anna Boar, argues that she has successfully
vacated a state conviction, for immigration purposes, when a state court allowed her to withdraw her
guilty plea to that conviction and entered a guilty plea nunc pro tunc to a different offense that would
have no immigration consequences. We affirm the judgment of the Board of Immigration Appeals
(BIA) that she has not done so, because the only reasonable inference that can be drawn from the
record is that the vacating court took this action in order to prevent Boar from being deported.
I
Anna Boar is a citizen of Romania who was admitted to the United States in 1995 as an
immigrant. On August 24, 1998, when Boar was twenty years old, she was convicted as a Youthful
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Trainee, as defined in Michigan Complied Laws (M.C.L.) §762.11,1 for the offense of first-degree
retail fraud.2 Boar pleaded guilty to this offense. She was sentenced to one year of probation. On
August 23, 1999, Boar was discharged from probation and her criminal case was dismissed pursuant
to the Youthful Trainee Act.
On December 27, 1999, shortly after the offense was discharged, the former Immigration and
Naturalization Service filed a Notice to Appear with the Detroit, Michigan Immigration Court,
charging that Boar was removable as an alien convicted of a crime of moral turpitude, committed
within five years of admission, for which a sentence of one year or more may be imposed.
Immigration and Nationality Act (INA) § 237(a)(2)(A)(i); 8 U.S.C. § 1227(a)(2)(A)(i).
On July 12, 2000 Boar attended a hearing before an immigration judge, where she denied that
she had been convicted of first-degree retail fraud, and thus denied that she was removable. She
filed a motion on the same day to terminate the removal proceedings, arguing that she had no
1
The Youthful Trainee statute provides: “[I]f an individual pleads guilty to a criminal offense,
committed on or after the individual's seventeenth birthday but before his or her twenty-first
birthday, the court of record having jurisdiction of the criminal offense may, without entering a
judgment of conviction and with the consent of that individual, consider and assign that individual
to the status of youthful trainee.” If an individual who committed a felony was assigned to youthful-
trainee status, the court was required to “do one of the following: (a) Commit the individual to the
department of corrections for custodial supervision and training for not more than 3 years . . . . (b)
Place the individual on probation for not more than 3 years . . . . (c) Commit the individual to the
county jail for not more than 1 year.” Id. at § 762.13(1). At the time of Boar’s conviction, if the
status of youthful trainee was not revoked, then upon the completion of the trainee’s supervision,
training, probation, or jail term, the court discharged the trainee and dismissed the proceedings. Id.
at § 762.14.
2
First-degree retail fraud is a felony under Michigan law, punishable by up to two years of
imprisonment and a fine of not more than $1,000. MICH . COMP. LAWS § 750.356C (1998).
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criminal convictions for purposes of INA § 237(a)(2)(A)(I) because her conviction had been
dismissed pursuant to the Youthful Trainee Act.
Boar next sought to vacate the retail-fraud offense from her record entirely. On September
11, 2000, the Circuit Court for Oakland County, Michigan, allowed Boar to withdraw her guilty plea
to first-degree retail fraud. The court also allowed Boar to instead enter a plea nunc pro tunc to
second-degree retail fraud, in violation of M.C.L. § 750.356d, an offense punishable as “a 93-day
misdemeanor.”3 The court did not provide reasoning for its decision. Boar’s motion, however,
stated that she had completed her probation; all the defrauded property had been returned; that no
damage to the property was suffered; she owed no restitution; that she had been discharged from
probation; that she had not been found in violation of any laws since that offense; and that she was
a part-time student who worked two jobs to support her family. Boar also handwrote on the
typewritten motion that she wished to withdraw her guilty plea “[p]ursuant to MCR § 6.500 et seq.”4
On October 12, 2000, Boar filed a renewed motion to terminate the removal proceedings in
the immigration court. She withdrew her former argument that she had no convictions on her
3
Because it is not punishable by one year of imprisonment or more, second-degree retail fraud
is not an offense that permits removal under INA § 237(a)(2)(A)(i).
4
Chapter 6.500 of the Michigan Court Rules deals with “Postappeal Relief.” The chapter
describes the form a motion for post-appeal relief must take, the process for filing and serving the
motion, and the procedure for hearing and considering the motion. The chapter does not set forth
the grounds on which a conviction can be overturned. In her brief, Boar suggests that the relevant
subsection of § 6.500 is § 6.508(d)(3), which states that the court may not grant post-appeal relief
to a party if the motion alleges “grounds . . . which could have been raised on appeal” unless the
party demonstrates “good cause for failure to raise such grounds . . . and . . . actual prejudice,” which
can include a defect in the proceedings that renders the plea involuntary.
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record.5 Instead, she argued that her guilty plea to first-degree retail fraud had been set aside due
to an infirmity in the legal proceedings. She did not provide any evidence of a legal infirmity other
than the nunc pro tunc plea to second-degree retail fraud.
At a hearing before the immigration court on July 3, 2001, the immigration judge stated that
Boar had not met her burden of proof that the Michigan state court’s post-conviction actions
eliminated her conviction for immigration purposes. The judge reasoned that the Circuit Court had
not indicated the basis for its vacation of her conviction, and that Boar’s argument that the conviction
had been vacated due to a legal infirmity could not be proved.
The immigration judge later denied Boar’s withholding of removal and ordered her to be
removed to Romania under INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I). The judge denied
Boar’s renewed motion to terminate the removal proceedings because Boar did not demonstrate that
her conviction was vacated for constitutional or statutory purposes as opposed to for rehabilitative
purposes.
Boar appealed the decision. She argued that the immigration judge erred in holding that her
conviction made her subject to removal, because her new conviction, entered nunc pro tunc by the
Circuit Court, carried a maximum penalty of only 93 days and therefore did not qualify as an offense
that permits removal under INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I).
The BIA dismissed Boar’s appeal, adopting and affirming the immigration judge’s decision.
The BIA determined that the Circuit Court had changed Boar’s plea nunc pro tunc to “enhance her
5
At another hearing, on January 3, 2001, Boar filed an application for asylum. This
application was denied on August 24, 2004. Boar does not appeal the denial of her application.
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immigration status” and that Boar “remain[ed] convicted for immigration purposes of the initial
crime involving moral turpitude.”
On February 7, 2006, Boar filed a petition for review of the Board’s decision. On January
8, 2007, the Attorney General filed an unopposed motion to remand the proceedings in light of
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), which changed the burden of proof in cases like
Boar’s, holding that the Department of Homeland Security (DHS) had the burden of showing by
clear and convincing evidence that the petitioner’s conviction was vacated solely for rehabilitative
or immigration purposes.
On March 13, 2007, the Sixth Circuit granted this motion, citing Pickering and Sanusi v.
Gonzales, 474 F.3d 341 (6th Cir. 2007), a case in which the government had been successful in
meeting this new burden. The Board of Immigration Appeals then remanded the case to the
immigration judge to permit the parties to present argument and evidence on whether the DHS had
met its burden of proof. The Board also ordered the immigration judge to address Boar’s
removability under Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005), which held that a trial
court’s decision to modify or reduce an alien’s sentence nunc pro tunc is entitled to full faith and
credit, and that the modification or reduction is valid for purposes of the immigration law without
regard to the court’s reasoning for its decision.
On remand, the immigration judge denied Boar’s motion to terminate the removal
proceedings. The judge found that the Circuit Court’s decision to withdraw Boar’s guilty plea to
first-degree retail fraud was in fact based on Boar’s successful rehabilitation after the offense. The
judge determined that the transcript of the hearing in front of the Circuit Judge “clearly indicate[d]
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that [Boar’s] withdrawal of her initial plea and the subsequent nunc pro tunc plea was entered based
on Boar’s rehabilitation.” The immigration judge again ordered that Boar be removed to Romania.
Boar appealed the immigration judge’s decision to the BIA. The BIA dismissed the appeal,
holding that the DHS had proven that Boar’s motion to withdraw her guilty plea to first-degree retail
fraud was based on rehabilitation and immigration purposes. The BIA determined that Matter of
Cota-Vargas was inapposite because Boar’s case involved the vacatur of her conviction, not just the
modification or reduction of her sentence.
Boar has appealed the BIA’s decision. We deny the petition for review.
II
Boar raises three issues in her appeal, but these collapse into one. Boar contends that her
motion to terminate the removal proceedings should have been granted based on the withdrawal of
her guilty plea and her subsequent nunc pro tunc plea to second-degree retail fraud, because the nunc
pro tunc plea to second-degree retail fraud completely eliminated her earlier conviction for first-
degree retail fraud. She argues that Matter of Cota-Vargas required the immigration judge to give
the nunc pro tunc plea full faith and credit with no regard to the reasons the judge gave for making
it.
Where the BIA adopts an immigration judge’s reasoning while adding its own comments,
as is the case here, this court reviews both the immigration judge’s and the BIA’s decision. Singer
v. Ashcroft, 398 F.3d 396, 400–01 (6th Cir. 2005). On petitions from BIA decisions, we review
questions of law de novo, but give “substantial deference” to the BIA’s interpretation of the INA.
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Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir. 2010) (internal quotation marks omitted). Whether
an alien’s conviction renders her removable is a legal question that we review de novo. Sanusi, 474
F.3d at 345 (internal quotation marks omitted).
For immigration purposes, a conviction is:
[A] formal judgment of guilty of the alien entered by a court or, if adjudication of
guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts
to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (emphasis added). Vacatur of a conviction may
render it invalid for immigration purposes, but this depends on the basis of the vacatur. If a
conviction is vacated because the process by which it was obtained was defective or illegal, then the
conviction is no longer valid for immigration purposes. See Pickering, 465 F.3d at 266 (stating that
a conviction vacated “because of procedural or substantive infirmities” is not valid for immigration
purposes).
However, if the vacatur was entered for rehabilitative purposes, “solely to avoid immigration
hardship,” then the conviction remains valid for immigration purposes. Sanusi, 474 F.3d at 345
(citing Pickering, 465 F.3d at 266). The government bears the burden of proof of showing by clear
and convincing evidence, either by direct evidence or evidence “from which one could infer and
conclude,” that the original court vacated the conviction solely for rehabilitative purposes. Al-Najar
v. Mukasey, 515 F.3d 708, 715–16 (6th Cir. 2008) (citing Pickering, 465 F.3d at 270). When a court
vacates a conviction without explanation, the government may meet its burden when the “alien’s
request for vacatur before the state court contained no legal basis to set aside his conviction” because
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there is no evidence from which to infer that the writ was granted on a recognized legal ground. Al-
Najar, 515 F.3d at 717 (citing Sanusi, 474 F.3d at 341).
A conviction for first-degree retail fraud, Boar’s original conviction, is a conviction that
permits removal because it is punishable under M.C.L. § 750.356C by imprisonment of up to two
years. However, the conviction was vacated by the Circuit Court, and a conviction for second-degree
retail fraud, an offense that does not qualify as removable, was entered nunc pro tunc. Therefore,
Boar does not have a removable offense on her record, unless the government can show by clear and
convincing evidence that the Circuit Court vacated Boar’s guilty plea to first-degree retail fraud
solely for rehabilitative or immigration purposes. If it did, then Boar’s conviction for first-degree
retail fraud is still valid for immigration purposes, and she is still removable. Al-Najar, 515 F.3d at
715–16.
Boar’s motion in the Circuit Court, on the basis of which it vacated her conviction, provided
no justification for vacating the conviction other than a rehabilitative purpose. The only law Boar
cited was MCR § 6.500 et seq. Most of chapter 6.500 deals with the process and form to follow
when seeking post-appeal relief; it does not provide grounds on which relief can be granted.
Subsection 6.508(d)(3), which Boar’s brief suggests applies in her case, states that a court may not
grant relief to a defendant if they “allege[] grounds for relief, other than jurisdictional defects, which
could have been raised on appeal . . . unless the defendant demonstrates . . . good cause for failure
to raise such grounds on appeal . . . and . . . actual prejudice [such as] . . . in a conviction entered on
a plea of guilty, . . . the defect in the proceedings was such that it renders the plea an involuntary
one.”
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Though Boar has indicated that law exists within Chapter 6.500 that could explain why the
Circuit Court did not reject post-appeal relief, she still gives no legal basis on which the court could
have granted relief. Specifically, her motion failed to discuss any grounds for relief, any “good
cause” for not raising these “grounds” on appeal, or any reason why her original plea should have
been found involuntary. Her barely articulated reference to law, undeveloped and unsubstantiated,
is no better than no reference to law at all. There is no evidence that the Circuit Court could have
vacated Boar’s conviction for first-degree retail fraud based on MCR § 6.500 et seq.
Boar’s case is like Sanusi. In Sanusi, the defendant had a conviction for property theft that
made him removable for immigration purposes. Sanusi, 474 F.3d at 343. Another court vacated this
conviction, without any explanation of its reasoning. Ibid. Because Sanusi had not raised or argued
“any colorable legal basis for the vacation of his conviction,” but had only discussed in his motion
the “harsh immigration consequences” that the conviction would cause, the Sixth Circuit determined
that the only reasonable inference that could be drawn was that the conviction was vacated to prevent
Sanusi’s deportation. The record here is basically the same.6 The only reasonable inference that can
be drawn from the Circuit Court’s decision is that Boar’s guilty plea was withdrawn and her plea to
second-degree retail fraud was entered in order to prevent her from being deported. Therefore, the
6
Boar’s case is distinguishable from the case in Pickering. In Pickering, the court vacated
defendant’s conviction without explanation, but the defendant had presented a reasonable legal basis
for vacating the conviction. Because there was a colorable legal basis for vacating the conviction,
the Pickering court determined that it was appropriate to draw an inference that the court had based
its decision on that reasonable legal basis. Boar’s case is different; she did not provide the Circuit
Court with a colorable legal basis on which to vacate her conviction.
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BIA did not err in holding that Boar’s conviction for first-degree retail fraud was still valid for
immigration purposes.
We also distinguish this case from Cota-Vargas, 23 I. & N. Dec. 849. Cota-Vargas dealt
with sentence modification or reduction, not the vacatur of a conviction. Id. at 850. The question
of whether a “conviction” exists under 8 U.S.C. § 1101(a)(48)(A) is separate from the determination
of the length of a sentence, or “term of imprisonment,” under 8 U.S.C. § 1101(a)(48)(B). A “state
court expungement of a conviction is qualitatively different from a state court order to classify an
offense or modify a sentence.” Rumirez v. Gonzales, 456 F.3d 31, 41 n.11 (1st Cir. 2006) (internal
quotation marks omitted). Cota-Vargas itself recognized the distinction in distinguishing the
Pickering line of cases, which apply to Boar’s case. Cota-Vargas, 23 I. & N. at 851–52.
III
For the reasons given above, the petition for review of the judgment of the Board of
Immigration Appeals is DENIED.
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HELENE N. WHITE, Circuit Judge (dissenting). Because I conclude that the government
has not shown by clear and convincing evidence that Boar’s conviction was vacated solely for
rehabilitative or immigration-related purposes, I respectfully dissent.
Under Pickering, Boar’s vacated conviction “remains valid for immigration purposes only
if it was vacated solely for rehabilitative reasons” or reasons related to her immigration status.
Pickering v. Gonzales, 465 F.3d 263, 270 (6th Cir. 2006) (emphasis in original). The relevant
inquiry centers on the basis on which vacatur is granted, not the reasons for which it is sought. Thus,
the “motive of the Petitioner in seeking to have [her] conviction quashed is of limited relevance ....”
Id. at 267. In Pickering, the petitioner indicated that he sought to quash his drug conviction solely
for immigration-related purposes, but cited the Canadian Charter of Rights and Freedoms as the legal
basis for the request. In re Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003). The Canadian court
quashed his conviction without referencing any legal authority or providing its rationale. Yet we
reversed the BIA and granted Pickering’s petition, holding that the government could not show by
clear and convincing evidence that the court vacated Pickering’s conviction solely to avoid
immigration consequences. Pickering, 465 F.3d at 270.
Here, the circumstances belie the suggestion that the order permitting Boar to withdraw her
guilty plea was entered for rehabilitative purposes because at the time the court permitted Boar to
withdraw her plea, the charge against Boar had already been dismissed for rehabilitative purposes
under the HYTA, based upon Boar’s lack of further criminal activity and successful completion of
HYTA conditions.
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This still leaves the possibility that the order was entered solely for reasons related to Boar’s
immigration status. However, there is nothing in the record to indicate that the order permitting Boar
to withdraw her guilty plea—which incorporated Boar’s motion made pursuant to Mich. Ct. R. §
6.500 et seq.,1 as well as the new plea agreement with the prosecutor—was entered for immigration
purposes. We can speculate that it was, but in the absence of any indication that the grounds for the
order were solely immigration-related—in either Boar’s motion, the transcript of the hearing, or the
order granting her motion to withdraw her guilty plea—we cannot presume that the court acted solely
to enable Boar to avoid adverse immigration consequences. Pickering, 465 F.3d at 269 n.4. The
contrary speculation by Boar’s counsel—that the new plea agreement had as much to do with Boar’s
original counsel’s ineffective assistance in permitting her to unnecessarily plead to a felony—is
equally plausible on this record.
The government carries a heavy burden when it seeks to deport a resident alien. Pickering,
465 F.3d at 268. Because I conclude that it has not met that burden by clear and convincing
evidence, I would reverse the decision of the BIA and grant Boar’s petition.
1
Boar’s citation to Mich. Ct. R. § 6.500 et seq., which permits relief from a judgment of
conviction on substantive grounds, distinguishes this case from Sanusi v. Gonzales, 474 F.3d 341
(6th Cir. 2007), where the petitioner did not raise any colorable legal basis for the vacation of his
conviction, instead asserting only his ignorance of immigration law at the time he entered his plea
and asking for mercy from the harsh immigration consequences of his conviction. Sanusi, 474 F.3d
at 347.
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