Cite as
23 I&N Dec. 878 (BIA 2006) Interim Decision #3525
In re Patryk Michal ADAMIAK, Respondent
File A27 253 715 - Cleveland
Decided February 8, 2006
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A conviction vacated pursuant to section 2943.031 of the Ohio Revised Code for failure
of the trial court to advise the alien defendant of the possible immigration consequences of
a guilty plea is no longer a valid conviction for immigration purposes.
FOR RESPONDENT: Margaret W. Wong, Esquire, Cleveland, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Victoria A. Christian,
Deputy Chief Counsel
BEFORE: Board Panel: HOLMES, HURWITZ, and MILLER, Board Members.
HOLMES, Board Member:
In a decision dated May 11, 2004, an Immigration Judge found the
respondent ineligible for cancellation of removal as an alien convicted of an
aggravated felony and ordered him removed from the United States. The
respondent has appealed from that decision. The appeal will be sustained and
the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a lawful permanent resident who was charged with
removability as an alien convicted of an aggravated felony based on his
September 1997 guilty plea to a drug trafficking offense in violation of
section 2925.03 of the Ohio Revised Code. During the course of the
immigration proceedings, the respondent filed a motion with the Cuyahoga
County Court of Common Pleas requesting that he be permitted to withdraw
his guilty plea and that his conviction be vacated as a result of the court’s
failure to comply with section 2943.031 of the Ohio Revised Code, under
which a court is required to give an “advisement” with respect to the potential
immigration consequences of a guilty plea. In October 2002, the trial court
granted the respondent’s motion, permitted withdrawal of his guilty plea, and
scheduled a new trial date in his case.
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On November 26, 2002, an Immigration Judge ruled that the Ohio court’s
order vacating the respondent’s drug trafficking conviction had no effect for
immigration purposes under the definition of a conviction provided at section
101(a)(48) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(48)
(2000), and she found the respondent removable as charged. At a subsequent
hearing held on May 11, 2004, a newly assigned Immigration Judge deferred
to the earlier determination that the respondent’s 1997 aggravated felony
conviction remained in effect for immigration purposes. The Immigration
Judge further concluded that the respondent’s conviction precluded him from
establishing eligibility for cancellation of removal and ordered him removed.
In its brief on appeal, the Department of Homeland Security (“DHS”) notes
that Immigration Judges have issued inconsistent decisions on whether a
conviction vacated under section 2943.031 of the Ohio Revised Code should
be recognized for immigration purposes. For the reasons indicated below, we
agree with the respondent that the conviction based on his September 1997
guilty plea has been vacated as a result of a defect in the underlying
proceedings and should no longer be considered a conviction for immigration
purposes.
II. ANALYSIS
In our decisions addressing the effect of State court orders vacating
convictions, we have distinguished between situations in which a conviction
is vacated based on post-conviction events, such as rehabilitation, and those
in which a conviction is vacated because of a defect in the underlying criminal
proceedings. See Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003)
(concluding that in light of the language and legislative purpose of the
definition of a “conviction” at section 101(a)(48) of the Act, “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”); see also Matter of Rodriguez-Ruiz,
22 I&N
Dec. 1378 (BIA 2000) (according full faith and credit to a New York court’s
vacation of a conviction under a statute that was neither an expungement nor
a rehabilitative statute).
The Ohio court’s order permitting withdrawal of the respondent’s guilty plea
is based on a defect in the underlying proceedings, i.e., the failure of the court
to advise the respondent of the possible immigration consequences of his
guilty plea, as required by Ohio law. To remedy the defect in the original
proceedings, the trial court ordered that the respondent be afforded a new trial
on the underlying drug trafficking charge. Under these circumstances, we
find that the Ohio court’s vacation of the respondent’s conviction should be
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recognized in immigration proceedings. In the absence of a statutory directive
to the contrary, we are required by
28 U.S.C. § 1738 (2000) to give full faith
and credit to this State court judgment.
To the extent that the DHS relies on Renteria-Gonzalez v. INS,
322 F.3d 804, 812-13 (5th Cir. 2002), our decisions in Matter of Pickering,
supra, and Matter of Rodriguez-Ruiz, supra, make clear that we do not share
the view of the United States Court of Appeals for the Fifth Circuit on this
matter. The Sixth Circuit, in whose jurisdiction this proceeding arises, has not
adopted the Fifth Circuit’s approach in Renteria-Gonzalez. Moreover, the
Government recently stated its view in a case arising within the Fifth Circuit
that “the Board’s opinion in [Matter of] Pickering constitutes a permissible
construction of the statute because it comprehensively addresses the effect of
a vacated conviction.” Discipio v. Ashcroft,
417 F.3d 448, 450 (5th Cir.
2005). Consequently, the court in Discipio granted the Government’s request
to remand the case to the Board for termination of removal proceedings based
on the vacation of the respondent’s conviction because of procedural defects
in the underlying criminal proceedings. See also Pinho v. Gonzales,
432 F.3d 193, 195 (3d Cir. 2005) (approving the Board’s distinction between
“convictions vacated for rehabilitative purposes and those vacated because of
underlying defects in the criminal proceedings”), and cases cited therein.
The remaining issue is whether subsequent developments in the
respondent’s criminal case, including his November 2002 drug trafficking
conviction, indicate that he nonetheless remains convicted of an aggravated
felony drug offense and is therefore ineligible for cancellation of removal.1
Among other arguments, the respondent asserts that the record of conviction
for his November 2002 drug trafficking conviction does not establish that he
sold or offered to sell cocaine for profit or any other benefit. Our limited
review authority precludes us from engaging in fact-finding in the course of
deciding appeals.
8 C.F.R. § 1003.1(d)(3)(iv) (2005). As the November 2002
record of conviction has not yet been examined by the Immigration Court, we
will remand the record for a determination whether the respondent’s
subsequent conviction is for an aggravated felony within the meaning of
section 101(a)(43)(B) of the Act.2
1
The question whether the subsequent conviction based on a guilty plea to an amended
indictment would be an aggravated felony was raised and preserved for appeal at the
May 11, 2004, Immigration Court hearing.
2
A number of decisions of the Sixth Circuit issued subsequent to the Immigration Judge’s
decision in this case may be relevant to whether the respondent’s current conviction is for
an aggravated felony. See, e.g., United States v. Palacios-Suarez,
418 F.3d 692 (6th Cir.
2005) (indicating that the court will follow the hypothetical Federal felony approach in
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III. CONCLUSION
The respondent’s September 1997 conviction was vacated by the trial court
pursuant to section 2943.031 of the Ohio Revised Code because of a defect
in the underlying criminal proceedings, i.e., the failure of the court to advise
him of the possible immigration consequences of his guilty plea. We
conclude that the court’s vacation of that conviction should be recognized for
immigration purposes, and we no longer consider the conviction to be valid.
The record will be remanded for further consideration of the respondent’s
November 2002 conviction.
ORDER: The appeal is sustained.
FURTHER ORDER: The record remanded to the Immigration Court for
further proceedings consistent with this opinion and for the entry of a new
decision.
applying section 101(a)(43)(B) in immigration cases); Garcia-Echaverria v. United States,
376 F.3d 507, 513-14 (6th Cir. 2004) (identifying
21 U.S.C. § 841(b)(1)(D) (2000) as the
appropriate Federal analogue in a case involving a drug trafficking conviction).
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