Luis Ballinas-Lucero v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MAXIMINO BALLINAS-LUCERO, No. 17-73260
Petitioner,
Agency No.
v. A200-154-807
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 15, 2022
San Francisco, California
Filed August 15, 2022
Before: William A. Fletcher, Ronald M. Gould, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher
2 BALLINAS-LUCERO V. GARLAND
SUMMARY*
Immigration
Granting Luis Maximino Ballinas-Lucero’s petition for
review of a decision of the Board of Immigration Appeals,
and remanding, the panel held that: 1) an applicant for
cancellation of removal bears the burden of proving that a
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; and 2) Ballinas-Lucero carried this burden of proof.
In 2012, Ballinas-Lucero pleaded guilty, without counsel,
to six misdemeanor theft charges. The BIA later concluded
that his petty theft convictions were crimes involving moral
turpitude that rendered him ineligible for cancellation of
removal. Ballinas-Lucero moved the Superior Court, through
counsel and pursuant to Cal. Penal Code § 1018, to withdraw
his guilty pleas and set aside his convictions. In his
Memorandum of Points and Authorities, he wrote that he was
afraid for his safety in jail, ignorant of his rights in court, and
did not have a working knowledge of English. He wrote,
further, that the Superior Court judge told him that if he
pleaded right away he would be given credit for time served
and released. Within a few minutes, he had pleaded guilty
without having read the police reports or consulting an
attorney. He wrote that he did not understand that as soon as
he pleaded guilty his fate was sealed not only with the courts
but with immigration.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BALLINAS-LUCERO V. GARLAND 3
The Superior Court granted his motion, and Ballinas-
Lucero pleaded guilty to violating Cal. Penal Code § 368(d),
theft from an elder adult. Ballinas-Lucero moved to reopen
his immigration proceedings. The BIA granted the motion,
but ultimately decided that Ballinas-Lucero failed to meet his
burden of proof as to the nature of the vacatur of his
convictions.
The panel explained that vacated convictions remain valid
for immigration purposes if they are vacated solely for
reasons unrelated to the merits of the underlying criminal
proceedings, that is, equitable, rehabilitative, or immigration
reasons. However, a conviction vacated on the basis of a
defect in the underlying criminal proceedings is no longer
valid for immigration purposes.
The panel held that applicants for cancellation of removal
bear the burden of proving that their vacated convictions are
not valid for immigration purposes. The panel relied on
Pereida v. Wilkinson, 141 S. Ct. 754 (2021), where the
Supreme Court held that because Pereida bore the burden of
proving his eligibility for cancellation, in the face of
ambiguous state court records, any uncertainty about
whether he stood convicted of a disqualifying crime was
enough to defeat his application for relief.
Next, the panel concluded that Ballinas-Lucero carried
that burden, explaining that the record compelled the
conclusion that his convictions were vacated due to legal
defects in his pleas. The panel observed that, under In re
Pickering, 23 I. & N. Dec. 621 (BIA 2003), the BIA
considers: (1) the law under which the court issued its order,
(2) the language of the court’s order, and (3) the reasons
provided by the noncitizen in the request for post-conviction
4 BALLINAS-LUCERO V. GARLAND
relief. The BIA concluded that Ballinas-Lucero’s evidence
(the statute under which vacatur was granted, Cal. Penal Code
§ 1018, and his Memorandum of Points and Authorities) was
“inconclusive” as to whether his convictions were vacated
“on the merits.”
The panel disagreed. First, the panel concluded that the
grounds for allowing withdrawal of a guilty plea under Cal.
Penal Code § 1018 are substantive and procedural defects in
the underlying proceeding. Second, the panel concluded that
any reasonable adjudicator reading Ballinas-Lucero’s
Memorandum would be required to find that the grounds
asserted pertained overwhelmingly to substantive and
procedural defects. Third, the panel concluded that the BIA
erred, under In re Pickering, by finding dispositive the
absence of any statement by the court regarding the reasons
for permitting the withdrawal of the guilty plea.
The panel remanded to the BIA 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.
BALLINAS-LUCERO V. GARLAND 5
COUNSEL
Richard Lucero (argued), Law Office of Richard Lucero,
Los Angeles, California; Rosana Kit Wai Cheung, Law
Offices of Rosana Kit Wai Cheung, Los Angeles, California;
for Petitioner.
Edward E. Wiggers (argued), Senior Litigation Counsel;
Mary Jane Candaux, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
Luis Maximino Ballinas-Lucero petitions for review of
the decision of the Board of Immigration Appeals (“BIA”)
dismissing his appeal from an order of an Immigration
Judge (“IJ”) denying his application for cancellation of
removal. The BIA held that Ballinas-Lucero was statutorily
barred from cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)(C) because, in the view of the BIA, his six
misdemeanor convictions for petty theft remained convictions
for immigration purposes even after they had been vacated by
a California Superior Court.
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
6 BALLINAS-LUCERO V. GARLAND
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).
I. Background
A. Factual Background
Ballinas-Lucero was born in Puebla, Mexico, in 1969. He
entered the United States without inspection in 1988 and has
resided continuously in the United States since 1996.
Ballinas-Lucero is married and has three children, two of
whom are U.S. citizens. His parents are lawful permanent
residents of the United States. Prior to being detained by the
U.S. Department of Homeland Security (“DHS”), Ballinas-
Lucero lived in Tustin, California, and worked as a manager
at a Burger King restaurant.
BALLINAS-LUCERO V. GARLAND 7
On January 4, 2012, Ballinas-Lucero was arrested at his
workplace. He was arraigned in the Orange County Superior
Court two days later on six misdemeanor charges, three for
“Theft from elder adult” under California Penal Code
§ 368(d) and three for “Theft by employee – under $400”
under California Penal Code §§ 484(a), 488, 508. The
charges stemmed from three disputes regarding change given
to a disabled customer and her caregiver on December 8,
2011, December 16, 2011, and January 4, 2012.
Ballinas-Lucero had never been arrested before. Without
representation by an attorney, he pleaded guilty to all six
charges the same day he was arraigned. The court minutes
from his January 6, 2012, arraignment state that a Spanish
interpreter was present and that Ballinas-Lucero was
“formally arraigned and informed of the charges.” The
minutes state that Ballinas-Lucero “understands [his] rights
as explained,” and “understands [the] consequences of the
plea.”
The Superior Court sentenced Ballinas-Lucero to six days
in county jail and three years of informal probation on the
theft from an elder adult charges. It stayed his sentence on
the theft by employee charges. Ballinas-Lucero was credited
with time served and released the same day.
B. Initial Immigration Proceedings
Several days after his release from jail, DHS detained
Ballinas-Lucero and issued a Notice to Appear in removal
proceedings. DHS charged him with violating
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United
States without being admitted or paroled.
8 BALLINAS-LUCERO V. GARLAND
Ballinas-Lucero conceded removability during a master
calendar hearing on January 31, 2012. Through counsel, he
filed an I-589 application for asylum, withholding of removal,
and relief from removal under the Convention Against
Torture (“CAT”). He also applied for cancellation of removal
and adjustment of status under 8 U.S.C. § 1229b(b). To be
eligible for cancellation of removal, an applicant generally
must demonstrate, inter alia, that he or she has not been
convicted of an offense under 8 U.S.C. § 1182(a)(2), which
renders inadmissable applicants convicted of certain crimes,
including crimes involving moral turpitude (“CIMTs”) or
crimes involving controlled substances. Id. § 1229b(b)(1)(C).
Petty theft in violation of certain statutes, including California
Penal Code §§ 484, 488, is a CIMT. Castillo-Cruz v. Holder,
581 F.3d 1154, 1159 (9th Cir. 2009) (collecting cases); see
also Silva v. Garland, 993 F.3d 705, 716–17 (9th Cir. 2021)
(casting doubt on the reasoning of our prior § 484 CIMT
holdings, but concluding they remained binding). However,
a noncitizen with only one conviction for a CIMT crime is
not inadmissible if the crime qualifies under the “petty
offense exception.” Castillo-Cruz, 581 F.3d at 1157 (citing
8 U.S.C. § 1182(a)(2)(A)(ii)(II)). A CIMT qualifies under
the petty offense exception if “the maximum penalty possible
for the crime of which the alien was convicted . . . did not
exceed imprisonment for one year and . . . the alien was not
sentenced to a term of imprisonment in excess of [six]
months.” Lafarga v. INS, 170 F.3d 1213, 1214–15 (9th Cir.
1999) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(II)).
Ballinas-Lucero appeared for his first merits hearing
before an IJ on April 9, 2012. He testified through an
interpreter. On direct examination, Ballinas-Lucero briefly
testified about his fear of returning to Mexico. On cross-
examination, the government attorney questioned him about
BALLINAS-LUCERO V. GARLAND 9
his theft convictions. The attorney asked, “Who did you steal
from?” Ballinas-Lucero responded that he was “accused of
having taken the change from a customer.” He explained that
this customer, a woman, was not elderly, but “not doing, not
so well,” or, in the words of the government’s attorney, was
“mentally handicapped.”
The IJ also questioned Ballinas-Lucero. The IJ asked him
if he had pleaded guilty to the theft charges. Ballinas-Lucero
responded, “[I]t was the first time I ever gone to court and it
was in Orange and I really had no idea what to say, whether
to say yes or no.” He further testified about his lack of
experience in criminal court and his failure to understand the
charges against him:
[W]hen I went to court, they read me the
charges, but everything was codified. It was
all in codes, so nobody said to me specifically
that this is for this, or that is for that. And the
translator just said to me to say yes, simply
and uh-huh. After I was accepted, after I
accepted or agreed to the charges, the attorney
asked me what the charges had been and I
told, I told her or him, I, I don’t even know
what they really were, uh-huh. And, and I
was told by the attorney that they have to
explain them to me or read them to me and I
said I don’t know. This was the first time I’m
ever in court.
Ballinas-Lucero said that he did not have an attorney to
represent him. He had “only a translator.” When the IJ
pressed him as to why he did not ask for an attorney,
Ballinas-Lucero answered, “I’m sorry, perhaps this was my
10 BALLINAS-LUCERO V. GARLAND
ignorance because it was my first time in court. I really
didn’t know what I was supposed to do.”
The IJ asked Ballinas-Lucero about the circumstances
underlying the theft charges. Ballinas-Lucero explained that
he was arrested at his workplace, and that it was a caregiver
for the person whose change he was accused of taking who
“caught” him. He said the customer in question was a regular
at the Burger King. Ballinas-Lucero testified that he did not
steal from the customer, but instead that the customer was
confused about the price of her order, which had not been her
usual order.
The IJ concluded the hearing stating, “[U]nfortunately, I
cannot alter your conviction and it appears you pled guilty to
it. If you think you were wrongly convicted, your only option
would be to go back to that court and try to get it to correct,
it’s what, you believe is an error.” The IJ said that he
credited Ballinas-Lucero’s testimony as to his fears about
returning to Mexico but found that he was nevertheless
ineligible for asylum, withholding, and CAT protection. The
IJ offered him voluntary departure, but Ballinas-Lucero
refused to waive his right to appeal the IJ’s decision and
elected instead to appeal the IJ’s decision to the BIA.
In an oral decision, the IJ denied Ballinas-Lucero’s
applications for asylum, withholding, CAT protection, and
cancellation of removal. The IJ questioned the validity of
Ballinas-Lucero’s criminal convictions:
[T]he Court did ask how he committed this
offense and from what respondent said he did,
it did not appear he was guilty. Realizing he
was not represented, believing that he may
BALLINAS-LUCERO V. GARLAND 11
have, as he says, not understood since they
were all talking in code, there may have been
a miscarriage of justice here.
The IJ held that because the convictions nevertheless
“appear[] proper” Ballinas-Lucero was statutorily barred from
cancellation of removal for having been convicted of “more
than two” CIMTs and was not eligible for the petty theft
exception. (The IJ appears to have misspoken. More than
one CIMT would have been enough to render Ballinas-
Lucero ineligible for the petty offense exception.)
Ballinas-Lucero appealed to the BIA. He argued, inter
alia, that he was “not guilty of the alleged conviction,” and
that it was “a misunderstanding.” He further contended that
all the charges came from a “single scheme of conduct” at his
workplace, which he argued made him eligible for the petty
offense exception, and thus eligible for cancellation of
removal. See 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering
noncitizens convicted of two or more CIMTs, “not arising out
of a single scheme of criminal misconduct,” deportable); see
also id. § 1229b(b)(1)(C) (rendering non-lawful permanent
residents ineligible for cancellation of removal if convicted
under an offense described in § 1227(a)(2)).
The BIA dismissed his appeal on September 12, 2012.
The BIA found that Ballinas-Lucero had been convicted on
multiple counts of petty theft under §§ 484(a) and 488 of the
California Penal Code. The BIA held that the thefts were
CIMTs; that the petty offense exception did not apply; and
that the convictions rendered Ballinas-Lucero statutorily
ineligible for cancellation of removal. The BIA also
dismissed his appeal as to his asylum, withholding, and CAT
claims.
12 BALLINAS-LUCERO V. GARLAND
C. Post-Conviction Relief
While his appeal to the BIA was pending, Ballinas-
Lucero moved in the Superior Court to withdraw his guilty
pleas and set aside his convictions. He brought his motion,
through counsel, pursuant to California Penal Code § 1018.
Section 1018 provides that “in case of a defendant who
appeared without counsel at the time of the plea the court
shall, for a good cause shown, permit the plea of guilty to be
withdrawn and a plea of not guilty substituted” if the motion
is timely. Cal. Penal Code § 1018. In his motion, Ballinas-
Lucero argued that he had “good cause” to withdraw his
guilty pleas because they were entered due to “an
overreaching of [his] free and clear judgment” caused by his
lack of attorney, his lack of information about the charges,
and his custodial status.
Ballinas-Lucero wrote in a Memorandum of Points and
Authorities in support of his motion that he made his first and
only appearance in the Superior Court two days after his
arrest. He had been confined in the county jail since his
arrest. While in jail, he had been “afraid for his personal
safety due to the large number of other seemingly
sophisticated and potentially violent inmates.” Once in the
courtroom, he was “scared, ignorant of his legal rights, and
did not have a working understanding of the English being
used by the participants.” He did not understand his
“Advisement of Rights form” even after it was translated into
Spanish. Ballinas-Lucero wrote that he had no “concept” of
what it meant to be provided with a lawyer “who would work
diligently for him and explore all possible defenses on his
behalf.”
BALLINAS-LUCERO V. GARLAND 13
Ballinas-Lucero wrote, further, that the Superior Court
judge had told him that “if he pleaded guilty right away he
would be given credit for time served and be released.”
“Within the span of a very few minutes,” he had pleaded
guilty without having read the police reports or consulting
with an attorney. He wrote that he did not “understand that
as soon as he pleaded guilty his fate was sealed not only with
the courts but with immigration.” Citing § 1018, Ballinas-
Lucero argued that the court should construe his motion to
withdraw liberally in order to promote justice.
The District Attorney did not oppose Ballinas-Lucero’s
motion to withdraw his guilty pleas. The Superior Court
granted Ballinas-Lucero’s motion on June 29, 2012. The
court vacated his six convictions and prior sentence; entered
a plea of not guilty on Ballinas-Lucero’s behalf as to all six
counts; ordered that arrangements be made to transfer
Ballinas-Lucero from DHS custody to the custody of the
Orange County Sheriff; and set the matter for a pre-trial
hearing on the now-pending charges.
On July 24, 2012, Ballinas-Lucero pleaded guilty to one
count of violating California Penal Code § 368(d), theft from
an elder adult. Upon a motion by the District Attorney, the
court dismissed the charges on the remaining five counts.
Unlike when he had pleaded guilty to all six charges,
Ballinas-Lucero was represented by counsel. The court
recited that it had advised Ballinas-Lucero of the immigration
consequences of his plea, and that it found a factual basis for
his guilty plea. The court sentenced Ballinas-Lucero to thirty
days in jail on the one count of conviction, three years
informal probation, and restitution. The court credited him
with time served.
14 BALLINAS-LUCERO V. GARLAND
Ballinas-Lucero’s Memorandum of Points and Authorities
in support of his motion to withdraw his plea, and the minutes
of the Superior Court proceedings, are the only documents in
the record relevant to the court’s granting of Ballinas-
Lucero’s motion to withdraw his guilty pleas. Ballinas-
Lucero submitted the Orange County Superior Court’s Notice
of Availability of Court Reporting Services, which indicates
that court reporters were generally not available at
misdemeanor arraignments and misdemeanor post-conviction
hearings.
D. Reopened Immigration Proceedings
After the Superior Court vacated his six misdemeanor
convictions, and after he pleaded guilty to one count of
misdemeanor theft, Ballinas-Lucero moved to reopen his
immigration proceedings. He argued that with only one
conviction for misdemeanor theft, he was now statutorily
eligible for cancellation of removal. The BIA granted his
motion to reopen and remanded his case to the IJ.
On remand, Ballinas-Lucero appeared before a different
IJ. The IJ emphasized to Ballinas-Lucero’s attorneys that
they would need to provide evidence showing that his
convictions were vacated “on the merits” and “not pursuant
to a rehabilitative statute” for the vacaturs to be effective for
immigration purposes. The IJ continued his merits hearing
several times so that Ballinas-Lucero could provide evidence
of the Superior Court’s rationale for vacating his convictions.
Ballinas-Lucero’s attorneys introduced the Memorandum of
Points and Authorities that had been submitted to the
Superior Court in support of his withdrawal motion, and the
Superior Court minutes showing that court’s vacatur of the
six convictions. They informed the IJ that a transcript of
BALLINAS-LUCERO V. GARLAND 15
Ballinas-Lucero’s post-conviction hearing had not been
made, and that the court had not issued a written ruling
explaining its reasons for granting Ballinas-Lucero’s motion.
Ballinas-Lucero argued, based on the available record, that
his convictions were vacated for the reasons provided in his
Memorandum of Points and Authorities and specified in the
text of the statute, California Penal Code § 1018, under which
the motion had been made and granted.
The IJ denied Ballinas-Lucero’s application for
cancellation of removal. The IJ held that Ballinas-Lucero
“remains convicted of offenses which disqualify him from
eligibility for non-[lawful permanent resident] cancellation
and will again pretermit his application for relief.” The IJ
wrote that “respondent bears the burden of proving that his
conviction was vacated on the merits.” The IJ held that
Ballinas-Lucero had failed to carry his burden: “Indeed, the
evidence submitted in this case shows that respondent’s
conviction was vacated for ameliorative or equitable
reasons.” The IJ made an alternative finding that even if five
of his convictions were vacated “on the merits,” Ballinas-
Lucero would still be ineligible for cancellation because of
his remaining conviction under California Penal Code
§ 368(d).
Ballinas-Lucero appealed to the BIA. He argued in his
brief that: (1) the government bore the burden of proving that
his convictions were vacated for rehabilitative reasons and
therefore remained effective for immigration purposes, and
(2) the IJ erred in finding that there was no evidence of the
substantive reasons the court vacated his convictions.
The BIA dismissed Ballinas-Lucero’s appeal on
November 13, 2017. The BIA held that “[t]he respondent has
16 BALLINAS-LUCERO V. GARLAND
the burden of demonstrating his eligibility for cancellation of
removal,” and that “the respondent bears the burden of
establishing that his convictions were vacated on the merits
and not for equitable or rehabilitative reasons or to spare the
respondent from immigration consequences.” The BIA
concluded:
In the absence of any statement by the court
regarding the reasons for permitting the
withdrawal of the respondent’s guilty plea, the
record is inconclusive on the issue of whether
the vacatur of the respondent’s convictions
was on the merits or was for rehabilitative or
equitable reasons. Therefore, the respondent
has not met his burden of establishing his
eligibility for cancellation of removal.
The BIA’s decision did not address the alternative ground on
which the IJ denied Ballinas-Lucero’s application for
cancellation of removal.
Ballinas-Lucero timely petitioned for review. We have
jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s
final order of removal.
II. Standard of Review
Where, as here, “the BIA conducts its own review of the
evidence and law, rather than adopting the IJ’s decision, our
review is limited to the BIA’s decision, except to the extent
the IJ’s opinion is expressly adopted.” Guerra v. Barr,
974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v.
Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)). We review de
novo the BIA’s determination of questions of law. Bringas-
BALLINAS-LUCERO V. GARLAND 17
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc). We review the agency’s factual determinations for
substantial evidence. Id. We must uphold the agency’s
factual findings unless the record compels a contrary
conclusion. 8 U.S.C. § 1252(b)(4)(B); Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). “If we
conclude that the BIA’s decision cannot be sustained upon its
reasoning, we must remand to allow the agency to decide any
issues remaining in the case.” Sanchez Rosales v. Barr,
980 F.3d 716, 719 (9th Cir. 2020) (quoting Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)).
III. Discussion
A. Vacated Convictions in the Immigration Context
Noncitizens residing in the United States face significant
immigration consequences as a result of a criminal conviction
in state or federal court. Criminal convictions bar noncitizens
present unlawfully in the United States from most forms of
discretionary relief from deportation, including asylum,
withholding of removal, and, as relevant here, cancellation of
removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii), 1229b(b)(1)(C). Criminal convictions for
certain serious offenses also render lawful permanent
residents “removable” and ineligible for discretionary relief
from deportation. See 8 U.S.C. §§ 1227(a)(2), 1229b(a)(3);
Padilla v. Kentucky, 559 U.S. 356, 363–64 (2010) (“Under
contemporary law, if a noncitizen has committed a removable
offense . . . , his removal is practically inevitable but for the
possible exercise of limited remnants of equitable discretion
vested in the Attorney General to cancel removal for
noncitzens convicted of particular classes of offenses.”).
18 BALLINAS-LUCERO V. GARLAND
Convictions subsequently vacated by a state or federal
court may remain valid for immigration purposes in certain
circumstances. See Nunez-Reyes v. Holder, 646 F.3d 684,
688–89 (9th Cir. 2011) (en banc). In the foundational case,
In re Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other
grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006),
the BIA explained:
[I]f 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) [of the INA]. 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.
Id. at 624; see also In re Thomas & In re Thompson, 27 I&N
Dec. 674, 674 (A.G. 2019) (affirming In re Pickering and
extending its test to “state-court orders that modify, clarify,
or otherwise alter a criminal alien’s sentence”). When, after
reviewing the state court record, it is determined that “the
quashing of the conviction was not based on a defect in the
conviction or in the proceedings underlying the conviction,
but instead appears to have been entered solely for
immigration purposes,” the conviction remains valid in
immigration proceedings. In re Pickering, 23 I&N Dec. at
625. That is, if a conviction is vacated “solely for
immigration purposes,” or for other reasons “unrelated to the
merits of the underlying criminal proceedings,” it remains
valid for immigration purposes. Id. at 624–25. However, and
relevant to this case, a conviction vacated “on the basis of a
BALLINAS-LUCERO V. GARLAND 19
defect in the underlying criminal proceedings” is no longer
valid for immigration purposes. Id. at 625.
In the years since In re Pickering was decided, we have
applied its holding repeatedly. We have held that a criminal
conviction vacated by a state court because of a “procedural
or substantive defect” is not a “conviction” for immigration
purposes. Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir.
2006) (quoting In re Pickering, 23 I&N Dec. at 624). “A
vacated conviction can serve as the basis of removal only if
the conviction was vacated for reasons ‘unrelated to the
merits of the underlying criminal proceedings,’ that is, for
equitable, rehabilitation, or immigration hardship reasons.”
Id. at 1188–89 (quoting In re Pickering, 23 I&N Dec. at 624);
see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107
n.3 (9th Cir. 2006); Prado v. Barr, 949 F.3d 438, 441 (9th
Cir. 2020); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141
(9th Cir. 2010). A vacated conviction remains valid for
immigration purposes when it is vacated “solely for
rehabilitative reasons or reasons related to [the petitioner’s]
immigration status.” Nath, 467 F.3d at 1189 (emphasis in
original) (quoting Cardoso-Tlaseca, 460 F.3d at 1107 n.3);
accord Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.
2011) (same).
B. Burden of Proof in Cancellation-of-Removal Cases
The BIA held that, because a noncitizen “has the burden
of demonstrating his eligibility for cancellation of removal,”
Ballinas-Lucero had the burden of demonstrating that his
convictions were vacated due to a substantive or procedural
defect, and not for equitable or rehabilitative reasons, and that
those convictions therefore no longer posed a bar to his
application for cancellation of removal. The Supreme
20 BALLINAS-LUCERO V. GARLAND
Court’s recent decision in another cancellation-of-removal
case, Pereida v. Wilkinson, 141 S. Ct. 754 (2021), persuades
us that the BIA was correct. In Pereida, the petitioner sought
to prove his eligibility for cancellation of removal, despite
having been convicted of a potentially disqualifying CIMT
offense—“attempted criminal impersonation.” Id. at 759.
The statute under which Pereida stood convicted was
arguably divisible (it included several CIMT sub-sections and
one non-CIMT subsection), and the question presented was
whether, given ambiguity in the state court record about
which subsection Pereida was convicted of violating, he had
been convicted of a disqualifying offense. Id. at 759–60. The
Court held that because Pereida bore the burden of proving
his eligibility for cancellation, in the face of ambiguous state
court records, “any lingering uncertainty about whether
Mr. Pereida stands convicted of a crime of moral turpitude
would appear enough to defeat his application for relief.” Id.
at 761.
In reaching this conclusion, the Court noted that the
burden of proving the presence (or absence) of a qualifying
criminal conviction “flips” from the government when it
seeks to prove removability to the applicant when relief from
removability is sought. Id. (comparing 8 U.S.C.
§§ 1229a(c)(3), 1227(a)(2)(A)(i) with § 1229a(c)(4)). The
Court explained, “These statutory features show that
Congress knows how to assign the government the burden of
proving a disqualifying conviction. And Congress’s decision
to do so in some proceedings, but not in proceedings on an
alien’s application for relief, reflects its choice that these
different processes warrant different treatment.” Id.
Consistent with the Court’s reasoning in Pereida, we hold
that applicants for cancellation of removal bear the burden of
proving not only that their convictions have been vacated, but
BALLINAS-LUCERO V. GARLAND 21
also that the vacated convictions are not valid for immigration
purposes.
We turn next to the question of whether Ballinas-Lucero
carried this burden.
C. Evidence of Effective Vacatur in this Case
In evaluating the criminal court record to assess the
reasons underpinning a court’s order of vacatur, the BIA
considers three types of evidence: (1) the law under which the
court issued its order, (2) the language of the court’s order
itself, and (3) the reasons provided by the noncitizen in the
request for post-conviction relief. In re Pickering, 23 I&N
Dec. at 625; see also In re Thomas, 27 I&N Dec. at 685.
Ballinas-Lucero proffered two pieces of evidence supporting
his argument that the Orange County Superior Court vacated
his misdemeanor convictions due to legal defects in his initial
guilty pleas: (1) the statute under which the vacatur was
granted, and (2) his Memorandum of Points and Authorities
in support of his motion to withdraw his guilty pleas. The
BIA considered Ballinas-Lucero’s evidence and held that it
was “inconclusive” as to whether the state court vacated his
convictions “on the merits.” We disagree.
The BIA acknowledged that Ballinas-Lucero’s motion to
withdraw his guilty plea was brought pursuant to California
Penal Code § 1018. However, the BIA did not conduct any
analysis of the statute to determine whether it provides for
vacatur for substantive or procedural reasons or for
rehabilitative or equitable reasons. The statute provides:
On application of the defendant at any time
before judgment or within six months after an
22 BALLINAS-LUCERO V. GARLAND
order granting probation is made if entry of
judgment is suspended, the court may, and in
case of a defendant who appeared without
counsel at the time of the plea the court shall,
for a good cause shown, permit the plea of
guilty to be withdrawn and a plea of not guilty
substituted. . . . This section shall be liberally
construed to effect these objects and to
promote justice.
Cal. Penal Code § 1018.
Section 1018 requires California courts to permit
criminal defendants to withdraw a guilty plea if they were
unrepresented by counsel at the time of their plea, upon a
showing of “good cause.” Id. The California Supreme Court
has held that “good cause” for withdrawing a guilty plea
under § 1018 means “[m]istake, ignorance, or any other
factor overcoming the exercise of free judgment,” and that
“good cause” must be proven with “clear and convincing
evidence.” People v. Patterson, 391 P.3d 1169, 1175 (Cal.
2017) (quoting People v. Cruz, 526 P.2d 250, 252 (Cal.
1974)). Withdrawal may be based on the court’s or the
counsel’s failure to advise a criminal defendant of the
consequences of a guilty plea. Id. at 725 (“Before the trial
court accepts a defendant’s guilty or no contest plea, the court
must advise the defendant of his or her maximum possible
sentence . . . . Failure to do so may be good cause to allow the
defendant to withdraw the plea.”); Patterson, 391 P.3d
at 1179 (holding that counsel’s failure to advise defendant of
the immigration consequences of his guilty plea could
constitute good cause for withdrawal, even after petitioner
received a general advisement from the court). “The
defendant may not withdraw a plea because the defendant
BALLINAS-LUCERO V. GARLAND 23
has changed his or her mind.” People v. Archer, 178 Cal.
Rptr. 3d 722, 730 (Cal. Ct. App. 2014).
The grounds for allowing withdrawal of a guilty plea
under § 1018 are substantive and procedural defects in
the underlying proceeding. Section 1018 is readily
distinguishable from other state statutes we have previously
found to allow vacatur for equitable or rehabilitative reasons.
See, e.g., Prado, 949 F.3d at 440–42 (holding that
California’s Control, Regulate, and Tax Adult Use of
Marijuana Act had reclassified Prado’s conviction “for policy
reasons of rehabilitation”); Poblete Mendoza, 606 F.3d
at 1142 (holding that any vacatur under Arizona Revised
Statutes § 13-907 was “for rehabilitative purposes”).
The BIA also considered the Memorandum of Points and
Authorities Ballinas-Lucero submitted to the Superior Court
in support of his motion to withdraw his guilty pleas. The
BIA noted that Ballinas-Lucero’s Memorandum “asserts that
the respondent felt pressured, did not understand his options,
did not discuss his case with an attorney, and was not
adequately advised of the immigration consequences of his
plea.” The BIA, however, did not evaluate Ballinas-Lucero’s
motion as evidence of the grounds for the state-court’s
decision, as In re Pickering instructs it to do. 23 I&N Dec.
at 625. Any reasonable adjudicator reading Ballinas-Lucero’s
Memorandum in support of his motion would be required to
find that the factual grounds asserted pertained
overwhelmingly to substantive and procedural defects in his
pleas, as specified in § 1018.
The only mention of immigration hardship in Ballinas-
Lucero’s Memorandum related to a legal defect in the
proceeding—that he did not sufficiently understand the
24 BALLINAS-LUCERO V. GARLAND
immigration consequences of his plea. See Patterson,
391 P.3d at 1176. The only equitable argument advanced in
his Memorandum was that it be “liberally construed” to
promote justice, which drew directly from the language of the
statute. Cal. Penal Code § 1018. Ballinas-Lucero’s
Memorandum made no reference to any post-conviction
rehabilitative events in Ballinas-Lucero’s life, and did not
discuss his immigration hardships, except to say that he did
not understand, at the time of his plea, “that his fate was
sealed” with immigration upon its acceptance by the court.
Because Ballinas-Lucero’s motion to withdraw his guilty
pleas was unopposed by the state, and because the Superior
Court granted his motion without any explanation, the
contents of his Memorandum in support of the motion are
critical to an understanding of the state court’s rationale for
vacating his convictions. 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
BALLINAS-LUCERO V. GARLAND 25
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).
Conclusion
We hold that Ballinas-Lucero bore the burden of proving
that his vacated convictions did not remain valid for
immigration purposes, and that he carried that burden. The
record in this case compels the finding that Ballinas-Lucero’s
convictions were vacated because of legal defects, and not
solely immigration purposes, or for rehabilitative or equitable
reasons. We therefore grant the petition for review and
remand the case to the BIA for further proceedings consistent
with this opinion.
The petition for review is GRANTED and the case is
REMANDED for further proceedings consistent with this
opinion.