Rumierz v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1895

ANTONI A. RUMIERZ,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Regis Fernandez for petitioner.
William C. Minick, Attorney, Office of Immigration Litigation,
U.S. Department of Justice, with whom Peter D. Keisler, Assistant
Attorney General, and Linda S. Werney, Assistant Director, were on
brief, for respondent.

August 3, 2006
 LYNCH, Circuit Judge. The BIA held here that an alien,

who is already under a final order of removal for committing crimes

of moral turpitude, bears the burden of proving that he has met the

standards under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003),

for vacating an order of removal presented in a belated motion and

premised on the post-final-order-of-removal vacating of the

underlying state court conviction. In the circumstances of this

case, the BIA held that the alien had not met that burden. Because

we cannot say that either the facts before it or the law compelled

the BIA to reach the opposite result, we affirm the BIA and deny

the petition for review.

I.

Antoni A. Rumierz, a Polish citizen who entered this

country as an immigrant in 1980, was ordered removed from the

United States by the BIA on August 18, 2000, on the basis that he

had been convicted twice in state courts of receiving stolen

property, which are crimes of moral turpitude for federal

immigration purposes. See 8 U.S.C. § 1227(a)(2)(A)(ii).

Before that, in 1999, the BIA had found Rumierz removable

on the same basis, but had remanded to the Immigration Judge (IJ)

to determine whether Rumierz nonetheless should be granted a waiver

of relief under former § 212(c) of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1182(c) (1994) (repealed 1996). The IJ

denied § 212(c) relief as a matter of discretion on December 10,

-2-
1999; this decision was affirmed in the BIA's August 2000 order.

Deportation proceedings had initially commenced in March 1994.

In its August 2000 order, the BIA expressly found that

the government had met its burden to show that the two prior

convictions were sufficient to establish Rumierz's deportability;

it also noted that the two convictions had not been vacated. There

is no doubt the criminal convictions, one of which was a January

1994 Vermont conviction, were qualifying crimes of moral turpitude.

Rumierz did not petition for review of the BIA's August 2000 order,

nor did he file a motion with the BIA to reopen.

In February 2001, Rumierz filed a pro se writ of habeas

corpus, which was heard in the U.S. District Court for the District

of New Jersey.1 No doubt he did this because the ninety-day filing

deadline to bring new evidence to the BIA under either a motion to

reopen or a motion to reconsider had long since expired. 8 C.F.R.

§ 3.2(c)(2) (1999) (recodified at 8 C.F.R. § 1003.2(c)(2)).

Thereafter, in 2002, two years after the BIA had entered

its final order of removal and the time for reopening had passed,

Rumierz sought to vacate the January 1994 predicate conviction in

Vermont. On application by Rumierz, a Vermont court entered, on

August 23, 2002, an "Agreement and Stipulation," which struck the

conviction for possession of stolen property and amended it to

1
According to the government, Rumierz initially filed his
habeas petition in Rhode Island, but the petition was transferred
to the U.S. District Court in New Jersey.

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negligent operation of a motor vehicle. Negligent operation of a

motor vehicle is not a crime of moral turpitude under the

immigration laws. Rumierz brought the vacating of the conviction

to the attention of the district court. The government responded

with an affidavit from a Vermont Deputy State's Attorney, which

stated that Rumierz had petitioned for post-conviction relief on

the basis of allegations of "certain errors in his earlier

conviction." The affidavit also stated that "[t]he merits of

Petitioner's claim were not addressed or adjudicated in connection

with the 'Agreement and Stipulation.'"

The district court on September 25, 2003, at Rumierz's

request, directed the BIA "to reconsider its [August 18, 2000]

decision in light of subsequent developments, including the

Agreement and Stipulation, dated August 23, 2002 from the Superior

Court, Windsor County, Vermont." The district court order did not

itself vacate the order of removal or order the BIA either directly

or indirectly to vacate the order of removal. It also did not hold

that Rumierz had met the standard used by the BIA to determine

whether to reopen proceedings.

The BIA, as instructed, reconsidered based on the record

sent to it by the district court, and denied relief, saying:

Upon further consideration, the
respondent's appeal will again be dismissed.
The August 23, 2002, "Agreement and
Stipulation" from the Vermont court states
only that [Rumierz's] conviction for
possession of stolen property "shall be

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 stricken and amended to negligent operation of
a motor vehicle." There is nothing in the
record to indicate that this conviction was
stricken based on any defect in the original
conviction. An affidavit from a Vermont
Deputy State's Attorney states that, "the
merits of Petitioner's claim were not
addressed or adjudicated" in connection with
the Agreement and Stipulation.

In [In re Pickering], we held that
where a court order quashing a conviction, and
the documents supporting the request to quash,
did not identify a basis for questioning the
integrity of the underlying criminal
proceeding or conviction, the conviction
remained valid for immigration purposes. In
that case, the alien's affidavit stated that
the conviction was a bar to his lawful
permanent resident status in the United
States.

We find that, particularly this late in
the proceedings (where the conviction in
question was entered in January of 1994, and
where deportation proceedings began in March
of 1994), [Rumierz] must present evidence to
show that the Vermont court's action in
striking the stolen property conviction was
tied to a defect in that conviction, rather
than related in part to immigration
proceedings. Here, there is no representation
in the record regarding any kind of defect in
the merits of the respondent's Vermont
conviction, and, as noted above, the state's
attorney has stated that in striking the
conviction, the judge did not address or
adjudicate the merits of [Rumierz's] claim.
Under these circumstances, the respondent has
not shown that the Vermont conviction for
possession of stolen property is not still
valid for immigration purposes. We therefore
find that the respondent remains deportable as
charged.

The BIA order had two major components. First, it

utilized the substantive standard the BIA had established in In re

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Pickering, 23 I. & N. Dec. 621, under which a vacated conviction is

no longer a "conviction" within the meaning of the immigration laws

only "if a court with jurisdiction vacates [the] conviction based

on a defect in the underlying criminal proceedings."2 Id. at 624.

Under Herrera-Inirio v. Gonzales, 208 F.3d 299 (1st Cir. 2000),

which pre-dates and is independent of Pickering, the rule is the

same:

The emphasis that Congress placed on the
original admission of guilt plainly indicates
that a subsequent dismissal of charges, based
solely on rehabilitative goals and not on the
merits of the charge or on a defect in the
underlying criminal proceedings, does not
vitiate that original admission.

Id. at 306. Second, the BIA held in the circumstances of this case

the alien bore the burden of demonstrating that the striking of the

state conviction "was tied to a defect in that conviction."

Thereafter, Rumierz renewed his habeas petition in the

U.S. District Court in New Jersey. The case was transferred to

this court on petition for review under section 106(c) of the REAL

ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302, 311

(codified at 8 U.S.C. § 1252 note).

2
In Pickering's actual case, the Sixth Circuit affirmed the
BIA's rule about vacated convictions, but reversed the BIA's order
of removal on the grounds that the government had not met its
burden under the specific facts of that case. Pickering v.
Gonzales, -- F.3d --, 2006 WL 1976043 (6th Cir. July 17, 2006).
The dicta in Pickering that the court would have come to the same
result had the burden been on the defendant is immaterial, as the
case is factually distinguishable from this case.

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 II.

Rumierz makes four arguments attacking the BIA's

conclusions. We quote from his brief:

First, the BIA incorrectly placed the burden
of proving deportability on Mr. Rumierz and
not on the government where he has been
charged with deportability. Second, the
stipulated order is entitled to full faith and
credit by the BIA without regard to the
Vermont Court's reasons for effecting the
modification or reduction.3 Third, even if the
BIA can look behind the stipulated order, the
government has not met its burden of proving
deportability by clear and convincing evidence
or that Mr. Rumierz's case runs afoul of [In
re Pickering] in that no reliable evidence has
been submitted showing that the criminal
conviction was vacated solely due to
immigration or rehabilitative reasons.
Finally, as a matter of procedural due process
the BIA should have terminated proceedings
with prejudice after one remand to amend the
[order to show cause]. (citations omitted).

A. Burden of Demonstrating Predicate Conviction

The initial question presented by Rumierz's arguments is

whether the BIA's allocation of the burden on the alien, in these

circumstances, to demonstrate that the Pickering standard has been

met is either contrary to the relevant statute or an impermissible

construction of the statute. See Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

3
The second argument has already been rejected by Herrera-
Inirio, 208 F.3d at 307 (holding that federal definition of
conviction under the immigration laws "does not infract applicable
principles of full faith and credit").

-7-
 The odd procedural posture in which this case came to the

BIA -- through a district court order that the BIA reconsider in

light of the vacated conviction -- makes no difference to the

standard of review we use to determine whether we can reverse the

choice of the BIA to place the burden on the petitioner on these

facts. Nor does it make a difference to our standard of review of

the BIA's ruling that Rumierz had not met his burden.

Rumierz argues that the BIA's allocation of burdens is

inconsistent with the statute. He says that under 8 U.S.C.

§§ 1101(a)(48)(A) and 1229a(c)(3)(A), the government must always

bear the burden of proof on showing a conviction of a crime of

moral turpitude, regardless of whether the issue arises in the

context of the alien having vacated the conviction after a final

order of removal. He also argues that the placing of the burden on

him is inconsistent with two Board rulings: Pickering and In re

Ortiz Herrera, A30-772-905, 2005 WL 3016102 (BIA Aug. 2, 2005)

(unpublished decision). However, Ortiz Herrera has no precedential

value,4 and Pickering does not address the issue of burdens.

4
Ortiz Herrera is also plainly distinguishable. The BIA
there found that where a predicate conviction was vacated after
removal proceedings had begun, but before a final order of removal
has been issued, the government "retain[ed] the burden of going
forward to establish removability" and of establishing that the
conviction was not vacated due to a defect in the underlying
proceedings. Ortiz Herrera, 2005 WL 3016102. Here, by contrast,
Rumierz's conviction was vacated by the Vermont court two years
after the final order of removability had entered.

-8-
 The first prong of the Chevron test asks "whether

Congress has directly spoken to the precise question at issue."

467 U.S. at 842-43. Rumierz relies heavily on the INA section

defining the term "conviction":

The term "conviction" means, with respect to
an alien, a formal judgment of guilt 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 contendere 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.

8 U.S.C. § 1101(a)(48)(A). This section itself does not assign

burdens.

But 8 U.S.C. § 1229a provides that the burden of proof is

on the DHS of establishing by clear and convincing evidence that,

in the case of an alien who has been lawfully admitted to the

United States, the alien is deportable.

In the proceeding, the [DHS] has the burden of
establishing by clear and convincing evidence
that, in the case of an alien who has been
admitted to the United States, the alien is
deportable. No decision on deportability
shall be valid unless it is based upon
reasonable, substantial, and probative
evidence.

8 U.S.C. § 1229a(c)(3)(A). The BIA found, in both its August 2000

order and its February 2004 order after reconsideration, that the

-9-
government had met its burden in the proceedings leading to the

August 2000 removal order. Rumierz does not contest that.

Both statutes, however, are silent on who has the burden

of showing the effect of convictions which are vacated or modified

after final orders of removal have entered. See Pinho v. Gonzales,

432 F.3d 193, 206 (3d Cir. 2005) (noting that "[n]othing in the

statute specifically addresses vacated convictions" and turning to

a Chevron analysis). Thus, Congress has not spoken directly to the

issue, and the BIA's position cannot be said to be contrary to the

statute.

Turning to the second prong of the Chevron analysis,

"whether the agency's answer is based on a permissible construction

of the statute," 467 U.S. at 842-43, a court must uphold the BIA's

interpretation of a silent or ambiguous statute so long as it is

reasonable and consistent with the statute. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 445 n.29, 447-48 (1987); Estrada Canales v.

Gonzales, 437 F.3d 208, 214-15 (1st Cir. 2006). Further, as we

noted in Herrera-Inirio, "[b]ecause agency officials acting in the

immigration context 'exercise especially sensitive political

functions that implicate questions of foreign relations,' deference

to administrative expertise is particularly appropriate." 208 F.3d

at 304 (internal citation omitted) (quoting INS v. Abudu, 485 U.S.

94, 110 (1988)).

-10-
 Placing the burden on the alien in these circumstances is

consistent with BIA regulations. This allocation of burdens

accords with the usual BIA rules that the burden is on the alien

show that there is a reason to reopen or to reconsider the case.5

Even if a prima facie case for relief is shown, the BIA "has

discretion to deny a motion to reopen." 8 C.F.R. § 1003.2(a); see

also Maryam v. Gonzales, 421 F.3d 60, 62 (1st Cir. 2005).

Most importantly, the placing of the burden on the alien

in these circumstances serves the interest of finality. That

interest in finality is already reflected in the statutes and the

BIA's rules, which both set time limits for motions to reopen and

place the burden on the alien seeking to reopen.6 Abudu, 485 U.S.

at 107-08. As the Supreme Court has noted:

Motions for reopening of immigration
proceedings are disfavored for the same
reasons as are petitions for rehearing and

5
Under the BIA regulations, a petitioner seeking to reopen
proceedings must "state the new facts that will be proven at a
hearing to be held if the motion is granted" and demonstrate "that
evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing."
8 C.F.R. § 1003.2(c)(1). The BIA may deny a motion to reopen on
the grounds that "the movant has not established a prima facie case
for the underlying substantive relief sought." Abudu, 485 U.S. at
104.
6
The BIA was entitled to consider the time limits under its
rules for seeking to vacate final orders of removal. "[A] party
may file only one motion to reopen deportation or exclusion
proceedings (whether before the [BIA] or the [IJ])," and the motion
to reopen "must be filed no later than 90 days after the date on
which the final administrative decision was rendered." 8 C.F.R.
§ 1003.2(c)(2).

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 motions for a new trial on the basis of newly
discovered evidence. This is especially true
in a deportation proceeding, where, as a
general matter, every delay works to the
advantage of the deportable alien who wishes
merely to remain in the United States.

INS v. Doherty, 502 U.S. 314, 323 (1992) (internal citation

omitted) (citing Abudu, 485 U.S. at 107-08).

The placement of burdens is also consistent with an

earlier BIA decision, albeit one the BIA did not cite in the

opinion.7 See In re Beckford, 22 I. & N. Dec. 1216 (BIA 2000) (en

banc). The BIA, in In re Beckford, held that when an alien files

a motion to reopen (purporting to attack a predicate conviction

underlying a removal order), the burden is on the alien to show

that the conditions for reopening have been met, even though the

7
There is no requirement that the BIA, or even a court,
explain its reasoning on a motion to reopen or reconsider. See
Lasprilla v. Ashcroft, 365 F.3d 98, 100 (1st Cir. 2004) ("We have
found nothing in the regulations that requires the BIA to explain
its reasons when deciding a motion to reconsider."); FDIC v. Ogden
Corp., 202 F.3d 454, 460 (1st Cir. 2000) ("Although a lower court's
elucidation of its reasoning invariably eases the appellate task,
motions often are decided summarily. . . . [W]e are aware of no
authority that would allow us automatically to vary the standard of
review depending on whether a district court has taken the time to
explain its rationale."). In any event, whether or not the BIA
relied on Beckford is not the point. Its placement of the burdens
is rational.
Further, no court has ruled against this allocation of
burdens. In Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir.
2005), the court noted its view that where a state court conviction
had been modified, the burden was on the government of showing the
necessary predicate conviction for removal purposes (that is, an
aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii)). See id.
at 1130. But the court did so where the conviction was apparently
vacated before there was a final order of removal. See id. at
1127-28.

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burden had been on the government initially to show that the alien

was removable. Id. at 1218. Where the motion to reopen is

untimely, for example, where the state conviction is not vacated

until after the time period for filing motions to reopen has

expired, then the burden is also on the alien to establish that the

motion presents an exceptional situation warranting further review.

Id. As Beckford said:

The current posture of this case is critical
to our decision. Were this case now before us
on direct appeal, we might be inclined to
remand for a further hearing. However, the
fact that this is an untimely motion
necessarily changes our point of view. A
criminal defendant is initially the
beneficiary of the rule that the government
must prove his guilt beyond a reasonable
doubt. However, once having been found
guilty, the defendant bears the burden of
proof if he wishes to attack that finding.
Similarly, the Service initially bears the
burden of proof in a removal proceeding, but
once an alien is found removable (and that
finding is upheld on appeal, if an appeal is
taken), the burden shifts to the alien who
wishes to attack that finding. We note that,
even where a motion to reopen is not untimely,
the motion will not be granted unless there is
a reasonable likelihood of success upon
reopening. This is particularly so when the
motion seeking further review of the finding
is untimely.

Id. (emphasis added) (internal citations omitted) (citing Taylor v.

Illinois, 484 U.S. 400, 414 (1988); INS v. Doherty, 502 U.S. 314

(1992); Abudu, 485 U.S. 94).

Here, the BIA explicitly noted that the vacating of the

conviction was "late in the proceedings" and that "the conviction

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in question was entered in January 1994, and . . . the deportation

proceedings began in March of 1994." Further, the BIA noted that

Rumierz could easily have sought to vacate the January 1994 Vermont

conviction and have presented the vacated conviction to the BIA in

the six years before the BIA's 2000 order.8 For this reason, as

well, the BIA's order is rational.9

We outline several other reasons that placing the burden

on Rumierz is rational. A shift of burden from the government to

the individual when there is a collateral attack on a final

judgment, as here, is quite common in the criminal law. For

instance, the Court has placed the burden of proof on federal

habeas petitioners who, under 28 U.S.C. § 2255, seek to vacate an

already-imposed federal sentence on the basis that predicate state

8
The fact that Rumierz was proceeding pro se before the BIA
by this time makes no difference. The Vermont conviction had been
entered in 1994. Rumierz had counsel from at least June 1995, when
his case was first heard by the IJ, until sometime in 1999. This
gave him nearly four years during which he was represented by
counsel to challenge the Vermont conviction. Indeed, during this
time period -- in September 1995 -- Rumierz was able to obtain a
state vacatur of another predicate conviction, from Massachusetts
(which the DHS then substituted with a different Massachusetts
predicate conviction).
9
The dissent incorrectly says that the only argument the
government made in its initial brief supporting the BIA's
allocation of the burden was that the alien was in a better
position to establish the circumstances of the vacatur; the dissent
concludes that all other arguments were waived. That is neither
accurate nor relevant. Our obligation is to review the BIA's
decision itself.

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offenses had been vacated.10 See Daniels v. United States, 532 U.S.

374, 382 (2001); Custis v. United States, 511 U.S. 485, 496-97

(1994); cf. Taylor, 484 U.S. at 414 (holding that there is a

presumption that new evidence, discovered by criminal defendant

after trial is over, would not change outcome of trial).

As to this case, in which there are concerns that the

alien has not acted with due diligence, the BIA order is also

rational by analogy to Johnson v. United States, 544 U.S. 295

(2005), which held that the defendant's failure to act with due

diligence in overturning a predicate state conviction underlying

sentencing enhancement precluded resort to a renewed limitations

period under the federal habeas statute. See id. at 310-11.

We reject the challenge to the BIA's decision to place to

burden of proof on Rumierz.

B. Whether the BIA Was Compelled to Hold that Rumierz Had
Met Pickering Standard

Our standard of review of the substance of the BIA's

decision that Rumierz did not meet his burden is quite narrow. The

BIA's "decision that an alien is not eligible for admission to the

United States is conclusive unless manifestly contrary to law." 8

10
Another analogy is to United States v. Hartsock, 347 F.3d
1 (1st Cir. 2003), which held that where, for purposes of a federal
statute criminalizing the possession firearms by those convicted of
domestic violence offenses, 18 U.S.C. § 922(g)(9), the statute
provided an affirmative defense that a prior conviction would not
be considered if there was an unknowing waiver of counsel, the
burden of proof for the affirmative defense would be placed on the
defendant. See Hartsock, 347 F.3d at 9.

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U.S.C. § 1252(b)(4)(C). Furthermore, the BIA's "administrative

findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary." Id.

§ 1252(b)(4)(B) (emphasis added). "This standard of review as to

factual questions is commonly known as the 'substantial evidence

test,' and substantial evidence exists where the decision is

'supported by reasonable, substantial, and probative evidence on

the record considered as a whole.'" Estrada-Canales, 437 F.3d at

215 (quoting Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir.

2005)).

The topic of how to handle vacated state court decisions

which are used as predicate convictions for purposes of removal has

often come before the BIA and the reviewing courts of appeals. It

is well accepted that not every vacating of a state court

conviction makes the conviction invalid for purposes of immigration

law. As this court held in Herrera-Inirio, 208 F.3d 299:

The emphasis that Congress placed on the
original admission of guilt plainly indicates
that a subsequent dismissal of charges, based
solely on rehabilitative goals and not on the
merits of the charge or on a defect in the
underlying criminal proceedings, does not
vitiate that original admission.

Id. at 306; see also Renteria-Gonzalez v. INS, 322 F.3d 804, 812

(5th Cir. 2002); United States v. Campbell, 167 F.3d 94, 98 (2d

Cir. 1999); Beltran-Leon v. INS, 134 F.3d 1379, 1380-81 (9th Cir.

-16-
1998). The rule in this circuit under Herrera-Inirio exists

independently of the BIA's Pickering case.

The generic issue arises under a number of sections of

the INA. See, e.g., Herrera-Inirio, 208 F.3d at 303 (dealing with

challenge to conviction of predicate crime of domestic violence);

see also 8 U.S.C. § 1227(a)(2)(E)(i). This case involves only

removals based on the commission of multiple crimes of moral

turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).

The BIA has relevant precedent. Under the Pickering

standard:

[T]here 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 [INA]
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.

Pickering, 23 I. & N. Dec at 624. Pickering itself did not

address the burden of proof.

The Attorney General, in an 2005 opinion pursuant to 8

C.F.R. § 1003.1(h)(1)(2) (authorizing BIA certification for review

by the Attorney General), emphasized that for a vacated conviction

to not be a "conviction" within the meaning of the immigration

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laws, the relief provided by the state must "reflect a judgment

about the merits of the underlying adjudication of guilt." In re

Marroquin-Garcia, 23 I. & N. Dec. 705, 713-17 (A.G. 2005). In

addition, the Attorney General noted:

State laws that authorize the subsequent
expungement of a conviction typically do so
for reasons that are entirely unrelated to the
legal propriety of the underlying judgment of
conviction -- reasons, in other words, that
are unrelated to concerns about the factual
basis for, or the procedural validity of, the
conviction. These state expungement laws
authorize a conviction to be expunged in order
to serve rehabilitative ends and without
reference to the merits of the underlying
adjudication of guilt. Such expunged
convictions would appear, therefore, to
survive as formal adjudications of guilt
entered by a court.

Id. at 713 (citations omitted).

We outlined Rumierz's four arguments earlier. They are

almost entirely dependent on his argument, which we have rejected,

that the burden was on the government.

Applying, as we must, the rule in Herrera-Inirio, it is

clear that the mere fact that the state court vacated the

conviction does not require the BIA to vacate the order of removal,

contrary to Rumierz's argument. Also applying Herrera-Inirio and

Pickering, it was Rumierz's burden to show that the vacating of the

Vermont conviction was based on a procedural or substantive

invalidity as defined by Pickering.

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 Rumierz's criticisms11 of the BIA decision, in any event,

do not convince us that the BIA was compelled to reach a different

conclusion. To support his argument, Rumierz points first to the

Vermont state court order (the "Agreement and Stipulation")

itself.12

11
Rumierz, relying on In re Cota-Vargas, 23 I. & N. Dec. 849
(BIA 2005), argues to us (but had not argued to the BIA) that "the
BIA should be precluded from even inquiring into the reasons for
the modification of the court's order in this case." This is
flatly contrary to both Pickering and Herrera-Inirio, and mixes
apples and oranges. The question in Cota-Vargas was whether a
state sentencing modification nunc pro tunc meant that the "term of
imprisonment" within the meaning of 8 U.S.C. § 1101(a)(48)(B) was
now less than that required to allow a conviction to constitute a
predicate offense. See 23 I. & N. Dec. at 852. Our issue is
different, whether a "conviction" exists within the meaning of 8
U.S.C. § 1101(a)(48)(A). Indeed, the BIA in Cota-Vargas
distinguished Pickering on the grounds that it involved
subparagraph (A) rather than (B). See 23 I. & N. Dec. at 851-52.
Further, it is well settled that "a state court expungement of a
conviction is qualitatively different from a state court order to
classify an offense or modify a sentence." Garcia-Lopez v.
Ashcroft, 334 F.3d 840, 847 (9th Cir. 2003).
12
Rumierz raises two other arguments for the first time in
his reply brief that were not raised to the BIA: First he argues
that the BIA was required to follow a lock-step analysis, where it
looks first to the order vacating the conviction and, if the order
is silent, to the record of post-conviction relief, and if there
was any claim of error made, it must treat the conviction as
vacated for immigration law purposes. Second, Rumierz argues that
the BIA could not review new evidence itself, but was required to
remand to the IJ to hear evidence and to engage in fact-finding as
to his reasons for seeking reversal. Both arguments are barred by
exhaustion doctrine, and are waived in this court. See Boakai v.
Gonzales, 447 F.3d 1, 4-5 (1st Cir. 2006); Diva's Inc. v. City of
Bangor, 411 F.3d 30, 39 (1st Cir. 2005). Further, for the BIA to
remand the matter to the IJ would have been fruitless. There was
no dispute before the BIA as to the content of the state court
record, and Rumierz already had ample opportunity to provide the
exact reasons he gave to the Vermont court for vacating the
conviction and had utterly failed to do so.

-19-
 The BIA's inquiry started with this Vermont court order,

which is consistent with how the BIA approached the issue in

Pickering. As the BIA noted, all that was docketed in state court

was an "Agreement and Stipulation" stating that the conviction for

possession for stolen property "shall be stricken and amended to

negligent operation of a motor vehicle." On its face, the order

fails to show, as required by Pickering, that the prior conviction

was vacated because of "a defect in the underlying criminal

proceedings." 23 I. & N. Dec at 624. All that the state court

order says is that the court had accepted an agreement of the

parties to vacate the conviction. The BIA opinion, we note, did

not say that it would never terminate an order of removal based on

a conviction which had been vacated by stipulation. Nor did it say

that the sole factor on which it found Rumierz had not met his

burden was that the vacating was based on a stipulation.

To support his claim that the stipulation here was

sufficient to invalidate the conviction within the meaning of the

immigration laws, Rumierz points to Pinho v. Gonzales, 432 F.3d

193. Pinho does not help him.13 The question is not whether an

13
Pinho is legally and factually distinguishable on several
other fronts. Importantly, the Pinho court, relying on a full
record of the state court proceedings, including hearing
transcripts, 432 F.3d at 196-97, expressly relied on the fact that
Pinho had raised a valid claim of ineffective assistance of
counsel, a clear "defect in the underlying criminal proceedings."
Id. at 211. Here, by contrast, the BIA had a sparse record
consisting only of the state court order and an affidavit from the
state attorney, neither of which demonstrate that Rumierz had

-20-
agreement or stipulation vacating a conviction can ever serve as a

basis for vacating an order of removal, but whether the BIA was

compelled to accept the stipulation here. Pinho does not say that

the BIA must accept every stipulation which leads to vacating a

conviction, whatever the circumstances.

Rumierz argues that the record, in fact, does show that

he had raised a valid claim of a defect in the underlying criminal

proceedings, as required by Pickering. Rumierz points to the state

attorney's affidavit, which states that Rumierz alleged "certain

errors in his earlier conviction."14 The BIA considered the state

attorney's affidavit, but concluded that it was insufficient to

meet Rumierz's burden of showing that the conviction was vacated

raised a valid claim of any defect. Also, in Pinho there was no
statement from a state's attorney that the merits of the
petitioner's claim had not been addressed or adjudicated.
Furthermore, the alien in Pinho had vacated his state convictions
well before the INS had considered the alien's application for
adjustment of status (the government in Pinho argued that his state
conviction had made the alien ineligible for adjustment of status).
Id. at 198. Here, the conviction was vacated after a final order
of removal had entered.
14
This case does not raise the Shepard-type sentencing
guidelines issue of what evidence the BIA may look at in
determining whether a vacated conviction remains valid for
immigration law purposes. See Shepard v. United States, 544 U.S.
13 (2005). The BIA and the courts are free to consider the reasons
stated in the stipulated order to amend the state court conviction.
See, e.g., Ali v. Ashcroft, 395 F.3d 722, 729 (7th Cir. 2005). And
Rumierz does not challenge the BIA's consideration of the state
attorney's affidavit; indeed, he relies on it. In the absence of
a statutory directive, such as that which exists under the U.S.
Sentencing Guidelines, it seems to us that the issue of what the
BIA considers, and in what order, is one for the BIA in the first
instance, to be tested, if necessary, only under Chevron.

-21-
based on a defect in the underlying proceedings, especially since

the affidavit stated that "the merits of [Rumierz's] claim were not

addressed or adjudicated in connection with the 'Agreement or

Stipulation.'" The BIA concluded that "there is no representation

in the record regarding any kind of defect in the merits of the

respondent's conviction" and that "[u]nder these circumstances,

[Rumierz] has not shown that the Vermont conviction . . . is not

still valid for immigration purposes." Again, a court does not

review this conclusion de novo, but asks only whether any

reasonable adjudicator would compelled to conclude to the contrary.

Going beyond the arguments presented by Rumierz, the

dissent's position is that the BIA was compelled to conclude that

the vacated conviction in this case -- which had been vacated not

after adjudication of the merits of Rumierz's motion to vacate, but

pursuant to an agreement and stipulation between the defendant and

the state's attorney -- meets the Pickering standard, simply by

dint of the fact that Rumierz had claimed "certain errors" through

a motion for post-conviction relief in state court.

The BIA was not obligated, as a matter of law, to accept

that the stipulation and agreement -- vacating a state law

conviction for unstated reasons, entered into long after the state

punishment had ceased and after a final order of removal -- was

sufficient to render the state conviction invalid within the

meaning of Pickering based on evidence that "certain errors" were

-22-
alleged. There is nothing in the federal immigration laws that

requires such a result.15

First, the BIA is not required to conclude that the mere

filing of a petition for post-conviction relief claiming "certain

errors" which results in a stipulation means that the petitioner

has raised valid claims of defects in the state criminal

proceedings.

Second, under Pickering, it is not enough to show that

there was an allegation of a cognizable defect in the state

proceedings; instead the alien must also show that "a court with

jurisdiction vacate[d] the conviction based on a defect in the

underlying criminal proceedings." 23 I. & N. Dec. at 624. Here,

even beyond the fact that Rumierz can point to nothing more than

the allegation of "certain errors," he cannot show that the

15
If Rumierz's position were correct, all it would take for
an alien to avoid or delay deportation on the basis of old
predicate state convictions is to wait until the final order of
removal had been entered, make invalid claims for post-conviction
relief in state court, find a state attorney who has more pressing
matters than defending an old conviction, have the conviction
vacated by agreement without having the merits of his claim
addressed or adjudicated, and return to the BIA to reopen the case
claiming that he had alleged "certain errors," without describing
what those errors actually were or providing a record of the state
proceedings. This would either force the government to find a new
ground for deportation and start the proceedings over again, or,
even worse, allow the alien (who had already been found deportable
for having two or more convictions for crimes of moral turpitude)
to remain in the country, even though the alien had never
demonstrated to anyone that there was even the suggestion of a
defect in the state criminal proceedings. The immigration system
was simply not designed to allow this sort of gamesmanship by
criminal aliens.

-23-
stipulation was "based on" those errors. A state's attorney,

rather than challenging the petition, may have agreed to a

stipulated motion to vacate the conviction for any number of

reasons other than the strength and validity of those claims.

We address another argument, which Rumierz did not make

before the agency (or the district court) or to this court, and so,

we hold, is precluded by the exhaustion doctrine and waived. See

Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006). Nonetheless, we

comment on it because it is heavily relied on by the dissent.

Nothing in the record of the state court proceedings that was

before the BIA -- the "Agreement and Stipulation" or the state

attorney's affidavit -- refers to a particular state statute

defining the post-conviction procedure used by Rumierz. The

dissent nonetheless assumes that Rumierz used the procedure set

forth in Vt. Stat. Ann. tit. 13, § 7131, and that this means the

grounds stated by Rumierz for relief from the state convictions are

necessarily all grounds eligible for Pickering relief. The

argument is based on certain assumptions, which Rumierz could have

easily supported with evidence, had the assumptions been true. But

Rumierz chose not to give the BIA such evidence. By its own terms

the Vermont statute, Vt. Stat. Ann. tit. 13, § 7131, only applies

to "[a] prisoner who is in custody under sentence of a court and

claims the right to be released" because of a defect in the

conviction. Id. Rumierz was not in custody in Vermont and had

-24-
served his time.16 The fact that Rumierz may have used a particular

post-conviction relief statute does not mean that the BIA was

required to hold that Rumierz had, in fact, raised valid claims of

defects in the underlying criminal proceedings or that the state's

attorney agreed to vacate the conviction because of the strength or

validity of those claims.

III.

Remaining Claims

Rumierz raises a number of other claims which were never

raised to the BIA and are barred by exhaustion doctrine. Rumierz

argues the BIA was obligated to tell him he was eligible for

naturalization and so the order or removal should be vacated. Even

if the claim had been exhausted, Rumierz was not eligible because

he was already in deportation proceedings and so was precluded from

naturalization. 8 U.S.C. § 1429 ("[N]o application for

naturalization shall be considered by the Attorney General if there

is pending against the applicant a removal proceeding . . . .").

As the DHS notes, there is no inequity. Rumierz entered the United

States as an immigrant in 1980; he had a number of years before the

16
The dissent asserts that Vermont courts have broadly
interpreted its post-conviction relief statute to cover Rumierz's
situation. Whether this is true or not, these were not arguments
raised by Rumierz before the BIA or before us. The BIA was not
required to find a state statute that Rumierz may have used to
challenge his state conviction, and to conduct its own research
into how Vermont courts interpret that statute.

-25-
start of his deportation proceedings to seek naturalization but

never once did so.

Rumierz also argues that the IJ who initially heard his

case was biased. The claim is defaulted because it was never

presented to the BIA. We lack jurisdiction. See Ishak v.

Gonzales, 422 F.3d 22, 32 (1st Cir. 2005).

Rumierz also argues that because he has spent the last

decade in DHS detention, as a general equitable matter he should be

released now and permitted to remain in the country. For any

number of doctrinal reasons, the argument is not cognizable, but a

few words are in order.

At base Rumierz's claim is that when the alien has

committed, as he has, more than two crimes involving moral

turpitude, all of these crimes should be charged by the DHS in the

initial deportation hearings. Here, part of the reason for the ten

years of detention is that the government initially relied on a

1989 Massachusetts conviction for breaking and entering (as well as

the Vermont conviction) and the IJ found Rumierz deportable. While

that decision was on appeal to the BIA, Rumierz succeeded in

vacating the Massachusetts conviction. The BIA permitted the DHS,

on remand to the IJ, to add a different Massachusetts conviction in

-26-
1995 for receiving stolen property. The IJ again found him

deportable in 1996.17

Rumierz allowed the various proceedings to run their

course and only after the August 2000 BIA final order of removal

did he seek to vacate his Vermont conviction in 2002. The delay is

entirely caused by Rumierz. His case has been ably handled by his

counsel. There is, now, no basis for him to continue to avoid

removal.

We deny the petition for review.

Dissenting Opinion Follows.

17
Under a 1998 decision of this court, Goncalves v. Reno, 144
F.3d 110 (1st Cir. 1998), the BIA gave Rumierz an opportunity to
have his claim for § 212(c) relief adjudicated. That claim was
denied by the IJ on December 10, 1999, and the denial was affirmed
by the BIA in its August 18, 2000 order.

-27-
 LIPEZ, Circuit Judge, dissenting. The majority holds

that the BIA properly placed the burden of contesting removability

on Rumierz and correctly concluded that he has not met his burden.

The majority emphasizes that there is no evidence of the validity

of Rumierz's claim of errors in his underlying conviction; that the

stipulated vacatur was not the result of an adjudication on the

merits of Rumierz's claim of errors; and that there is no evidence

that the state's attorney agreed to the stipulated vacatur because

of the claim of errors. I disagree that Rumierz has failed to meet

the burden assigned to him by the BIA. Because I conclude that he

met that burden, I would not reach the more difficult issue of

whether the BIA properly placed the burden on the petitioner in

this case. Indeed, there is good reason to question whether the

majority's analysis of the issue comports with the procedural

posture of this case or with the arguments invoked by the BIA and

the government in support of the allocation of the burden. For

these reasons, I respectfully dissent.

A. Allocation of Burden

Although the majority acknowledges the "odd procedural

posture" of this case, ante at 8, it does not acknowledge that this

procedural posture undermines its analysis of the allocation of the

burden. In concluding that the BIA properly placed the burden of

contesting removability on Rumierz, the majority treats the BIA's

decision as the equivalent of a denial of a motion to reopen. See

-28-
ante at 11-13. This is an inaccurate characterization of the BIA's

actions. Here, a federal district court remanded the case

(initially brought through a habeas petition) to the BIA to

"reconsider its last decision in light of subsequent developments,

including the Agreement and Stipulation, dated August 23, 2002,

from the Superior Court, Windsor County, Vermont."18 This was not

a directive from the court to the BIA to decide whether it should

reopen its last decision (which would be the threshold decision

that the BIA would have to make if presented with a motion to

reopen). Nor did the BIA treat the remand as such. We have

explained that "[t]he filing of a motion to reopen with the BIA is

not a vehicle for trying an issue, but is merely a request for the

opportunity to try it." DaCosta v. Gonzales, 449 F.3d 45, 50 (1st

Cir. 2006). If the BIA here had denied an untimely motion to

reopen, it would have framed its decision in an entirely different

manner, citing the regulations for motions to reopen and explaining

why it would not reopen Rumierz's case. Instead, the BIA began its

analysis by stating that, "[u]pon further consideration, the

respondent's appeal will again be dismissed." It considered the

question of removability in light of the vacatur and then concluded

18
While the district court used the term "reconsider," the
more apt term under BIA regulations is "reopen" because the remand
was based on new evidence, i.e., the Agreement and Stipulation and
the state's attorney's affidavit. See 8 C.F.R. § 1003.2(c). The
government at oral argument acknowledged that "reopen" was the
applicable term.

-29-
that Rumierz's conviction was still valid for removal purposes and

"therefore . . . the respondent remains deportable as charged.

Accordingly, the respondent's appeal will again be dismissed."

This language demonstrates that the BIA, as instructed, reopened

Rumierz's administrative proceedings but concluded that Rumierz was

nonetheless removable.

This distinction is important because the BIA's reopening

of a case vacates the final order of removal and reopens the

administrative removal proceedings. See id. During administrative

removal proceedings, the government has the burden of proving by

"clear and convincing evidence" that the petitioner is subject to

removal on the basis of his convictions. 8 U.S.C.

§ 1229a(c)(3)(A); see also Pickering v. Gonzales, -- F.3d --, 2006

WL 1976043, *4 (6th Cir. July 17, 2006) (concluding that, once the

petitioner produces evidence that his conviction has been vacated,

"the [p]etitioner is deportable only if the government can show,

with clear, convincing and unequivocal evidence, that the

conviction was vacated solely for immigration reasons"); Cruz-

Garcia v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005) (holding

that, in a case where the petitioner obtained post-conviction

relief reducing his felony conviction to a misdemeanor, "the

evidence of record is legally insufficient to satisfy the INS's

stringent burden of proof and, thus, . . . the order for removal

must be reversed"); Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.

-30-
2001) ("In order to show that Sandoval's original conviction for

possessing more than thirty grams of marijuana remained in effect,

the INS could have shown 1) that the Illinois judge exceeded his

authority under state law, thus rendering the modification

ineffective, or 2) that the sentence modification was legal but not

effective for purposes of federal immigration law. We find that

the INS did not establish either of these factual situations by

clear, unequivocal, and convincing evidence.").19 If, as I believe

the record establishes, the BIA actually reopened Rumierz's case in

response to the district court's order, rather than simply

adjudicating the case as a request for reopening, the BIA erred in

its allocation of the burden of proof.

It would therefore be improper to defer to the agency's

error under Chevron. The majority observes that the Immigration

and Nationality Act ("INA") is "silent on who has the burden of

showing the effect of convictions which are vacated or modified

after final orders of removal have entered." Ante at 10.20 That may

19
In an unpublished decision, the BIA itself has stated that
"even where a conviction is vacated after the DHS initiates
proceedings and makes a prima facie case with respect to the
conviction, the DHS retains the burden of going forward to
establish removability." In re Roberto Ortiz-Herrera, 2005 WL
3016102 (BIA Aug. 2, 2005) (affirming IJ's decision that the
government failed to meet its burden of demonstrating that vacatur
of noncitizen's state court conviction was merely for
rehabilitative purposes).
20
In support of this proposition, the majority cites Pinho v.
Gonzales, 432 F.3d 193, 206 (3rd Cir. 2005). However, Pinho did
not deal with the BIA's interpretation of the statutory allocation

-31-
be true, but if the proceedings were reopened in this case (thus

vacating the final order of removal), that observation misses the

point. The applicable statutory provision, 8 U.S.C.

§ 1229a(c)(3)(A), is not silent on who has the burden of showing

the effect of a conviction, vacated or not, during administrative

removal proceedings. As the plain language of the statute states,

and as the aforementioned cases explain, the government has the

burden of establishing removability during removal proceedings.

Thus, if the BIA reopened Rumierz's administrative removal

proceedings but denied his appeal, it misapplied the allocation of

burden under 8 U.S.C. § 1229a(c)(3)(A) and there is no basis for

applying Chevron deference to its shifting of the burden to the

petitioner.

The regulation, cases, and analogies relied upon by the

majority to support its contrary view of the case only further

undermine its conclusion. None of these regulations, cases, or

analogies -- applicable to motions to reopen -- were mentioned in

the BIA decision or by the government in its briefs. The BIA never

cited 8 C.F.R. § 1003.2, the regulation governing motions to

reopen, ante at 11, or In re Beckford, 22 I. & N. Dec. 1216 (BIA

2000), a case in which the BIA rejected an untimely motion to

of burden issue in the Chevron context at all. It applied a
Chevron analysis to determine whether the BIA's definition of
"conviction" in Pickering was entitled to deference, an issue we
have already addressed in a previous decision. See Herrera-Inirio
v. INS, 208 F.3d 299 (1st Cir. 2000).

-32-
reopen where the petitioner conceded removability, see ante at 12-

13. For its part, the government also said nothing of motions to

reopen or the standards governing them until oral argument, where

it raised for the first time the argument that the BIA treated this

case as a motion to reopen. In its brief, the only argument the

government raised in support of the BIA's allocation of the burden

in this case was that "an alien who obtains a [vacatur] of a state

court conviction is clearly in a better position tha[n] DHS

personnel to have access to documentation regarding the

circumstances of the vacatur." The weakness of this argument as a

justification for burden shifting is readily apparent,21 which is

perhaps why the majority opinion does not even mention it. In any

event, the arguments upon which the majority relies are not the

arguments expressed in the BIA decision nor arguments raised in the

government's brief.

We have said many times that "[w]e must judge the action

of an administrative agency based only on the reasoning provided by

the agency, not based on substitute grounds we construct ourselves

to salvage the agency's action." Ymeri v. Ashcroft, 387 F.3d 12,

17 (1st Cir. 2004). Furthermore, "[w]e have consistently held

that, except in extraordinary circumstances, arguments not raised

21
Such reasoning would hold whenever a person obtains a
vacatur of his criminal conviction, regardless of the timing of the
vacatur. Yet, at least during removal proceedings, the government
still retains the burden of establishing removability even when a
petitioner obtained a vacatur of an underlying conviction after
proceedings have commenced. See supra Part A.

-33-
in a party's initial brief and instead raised for the first time at

oral argument are considered waived." United States v. Pizarro-

Berrios, 448 F.3d 1, 5 (1st Cir. 2006); see also United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived."). Here, the majority both

constructs new grounds to salvage the BIA's action and, in so

doing, relies on arguments not raised in the government's brief.

This unorthodox approach is apparently necessary to

defend a BIA decision that cannot be defended on its own terms.22

22
Because of the procedural oddity of this case -- on remand
from the district court -- Rumierz may have received a renewed
review of his administrative appeal that the BIA might not
otherwise have been inclined to grant him. Certainly, if Rumierz
had not obtained a remand from the district court on habeas, he
could have instead filed a motion to reopen directly with the BIA,
which, though untimely, the BIA could have granted sua sponte. See
8 C.F.R. § 1003.2(a). But, as the majority points out, the BIA
grants such motions only in extraordinary cases. Therefore, it was
beneficial for Rumierz that the district court remanded this case
to the BIA.
This procedural oddity only underscores why this case is a
poor vehicle for announcing the majority's broad rule on the
reallocation of the burden of proof when a petitioner seeks to
reopen his case on the basis of a vacated conviction. Perhaps the
BIA in this case should have sought clarification from the district
court on the scope of the remand. Perhaps the BIA should have
treated the remanded case as an untimely motion to reopen and
proceeding accordingly. But it did neither of those things.
Instead, as explained in its description of its decision, it
reopened the administrative proceedings, considered the new
evidence, decided the question of removability, and then dismissed
Rumierz's administrative appeal. While it may have been
preferable, in the majority's view, for the BIA to have treated
this case differently, it is not appropriate for the majority to
write a decision that it wishes the BIA had written or to make
arguments that it wishes the government had presented in defending
the agency's action.

-34-
From my reading of the BIA's decision, the BIA reopened but

ultimately denied Rumierz's administrative appeal. In so doing,

the BIA erred in allocating the burden to Rumierz under 8 U.S.C.

§ 1229a(c)(3)(A). In any event, the majority's decision to reframe

the BIA's decision and supply new reasoning aside, we did not have

to reach this difficult issue here. As I describe in further

detail below, I conclude that Rumierz has met the burden allocated

to him by the BIA.

B. Rumierz's Vacatur

The BIA stated that Rumierz "must present evidence to

show that the Vermont court's action in striking the stolen

property conviction was tied to a defect in that conviction, rather

than related in part to immigration proceedings." Although the

record evidence here is sparse,23 it includes (1) an "Agreement and

Stipulation" that the conviction for possession of stolen property

"shall be stricken and amended to negligent operation of a motor

vehicle" and (2) an affidavit of Deputy State's Attorney Matthew

Huntington regarding the Agreement and Stipulation that states that

Rumierz raised "errors in his earlier conviction in Windsor

District Court, Vermont" through a "Petition for Post-Conviction

Relief." Without acknowledging the affidavit's reference to

Rumierz's claims of errors in his conviction, the BIA stated that

23
Rumierz, who has been detained since 1994, was pro se at the
time of the BIA's consideration of his vacatur.

-35-
"there is no representation in the record regarding any kind of

defect in the merits of the respondent's Vermont conviction, and .

. . the state's attorney has stated that in striking the

conviction, the judge did not address or adjudicate the merits of

the respondent's claim." For these reasons alone, the BIA

concluded that Rumierz failed to meet his burden.

In affirming the BIA's decision, the majority again bases

its reasoning on grounds not relied upon by the BIA or raised in

the brief of the government. Specifically, the majority

acknowledges the affidavit's reference to Rumierz's claims of

errors in his conviction, but asserts that there is no evidence

that Rumierz raised "valid claims of defects" in his criminal

proceedings and that the state's attorney, in agreeing to the

stipulated motion, may have done so "for any number of reasons

other than the strength and validity of those claims," ante at 23-

24. For these reasons, the majority holds that the record does not

compel the BIA to conclude that Rumierz has failed to meet his

burden.

The majority's decision reflects the erroneous notion

that a vacatur must follow an adjudication on the merits of claimed

legal errors or some further inquiry regarding the validity of the

claims and any hidden reasons behind the government's agreement to

the stipulation. Such requirements are a misapplication of In re

Pickering, 23 I. & N. Dec. 621 (BIA 2003). The proper approach in

-36-
this case is to examine whether Rumierz has provided evidence that

the stipulated order was based on defects in his underlying

conviction, rather than grounds proscribed by Pickering. Following

this approach, I conclude that the BIA was compelled to find that

Rumierz met the burden allocated to him.

1. Vacatur by stipulation

In Pickering, the BIA explained that "if a court with

jurisdiction vacates a conviction based on a defect in the

underlying criminal proceedings, the respondent no longer has a

'conviction' [for immigration purposes]. 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." 23 I. & N. Dec. at 624; see also

Herrera-Inirio v. INS, 208 F.3d 299, 306 (1st Cir. 2000) ("[A]

subsequent dismissal of charges, based solely on rehabilitative

goals and not on the merits of the charge or on a defect in the

underlying criminal proceedings, does not vitiate that original

admission [of guilt]."). Nothing in Pickering precludes a

stipulated vacatur from invalidating a conviction as a ground for

removal or for other immigration purposes, provided that the

vacatur is still based on a defect in the underlying conviction

rather than rehabilitative or otherwise proscribed grounds. See

Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005) (holding that the

petitioner's vacatur, obtained by settlement rather than

-37-
adjudication, meets the Pickering standard because the petitioner

claimed a defect in his underlying conviction); Cruz-Garcia v.

Ashcroft, 396 F.3d at 1131 (explaining that if "a substantive

challenge to and/or showing of the inappropriateness of the felony

conviction prodded the State into stipulating to a vacatur of the

conviction and its replacement by a misdemeanor," then "[o]n this

scenario, petitioner's vacated felony conviction would not satisfy

the test for removal").

The majority acknowledges that some stipulated vacaturs

might suffice to meet the Pickering standard and that, in this

case, the BIA did not deny Rumierz's appeal based solely on the

fact that his vacatur was obtained by stipulation. Yet, in

affirming the decision of the BIA, the majority emphasizes several

factors that are characteristic of stipulations -- i.e., that the

merits of Rumierz's claims of error had not been addressed or

adjudicated by the judge in ordering the stipulated vacatur; that

one cannot assume that Rumierz raised "valid" claims of defect; and

that the state's attorney may have agreed to the stipulation for a

variety of reasons not indicated on the record. Ante at 20 n.13,

23-24. In holding that Rumierz's vacatur cannot meet the Pickering

standard based on these factors, the majority effectively creates

a bar that applies to many vacaturs obtained by stipulation or

settlement. As the Third Circuit's recent decision in Pinho

explains, such a bar would be inappropriate, and the factors relied

-38-
upon by the majority here are simply not dispositive in a proper

Pickering analysis.

Pinho, like the case here, involved a petitioner who had

sought and obtained a vacatur of an earlier conviction through a

settlement with the government rather than a trial. Specifically,

the petitioner in Pinho had pled guilty to a drug crime, and later

applied for post-conviction relief based on his claim that he had

received ineffective assistance of counsel in connection with his

rejection from a special alternative sentencing program (termed

"PTI placement") that would have allowed him to earn a dismissal of

charges without having to plead guilty. See Pinho, 432 F.3d at

196. The government settled, and an order was issued dismissing

the charges against him and, according to the parties, his

conviction was vacated. See id. at 196-97. Pinho later applied

for adjustment of his immigration status, but was denied on the

basis of his old drug conviction. See id. at 197. In response to

his filing of a complaint in district court, the court held that

his vacated conviction was still a conviction for immigration

purposes. See id. at 199.

The Third Circuit reversed. It found the BIA's

longstanding distinction between "rehabilitative vacaturs"(vacating

a conviction for rehabilitative or immigration-related purposes)

and "substantive vacaturs" (vacating a conviction on the basis of

a legal defect in the proceedings) to be reasonable. See id. at

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209-10. However, the Third Circuit concluded that, under

Pickering, a vacatur need not follow a formal adjudication on the

merits in order to be a substantive vacatur:

The fact that the parties agreed to settle
rather than proceed to trial on the
ineffective assistance claim should not be
dispositive. Indeed, it may be that the
likelihood that the prosecution will agree to
a settlement such as PTI placement will
increase proportionally with the strength of
the alien's constitutional claim. If the BIA
in Pickering had meant to require an
adjudication of the merits of aliens' claims
of substantive defects in the original
conviction in order to make out an adequate
"basis," it could have said so. But it did
not. It has instead drawn its line between
vacaturs "based on" underlying defects and
vacaturs granted "for reasons" not related to
underlying defects, and it is readily apparent
that the set of vacaturs "based on" underlying
defects is not necessarily coextensive with
the set of vacaturs based on adjudications of
underlying defects. We must therefore inquire
as to the reasons underlying the vacatur
order, and it would obviously be begging the
question simply to invoke the PTI acceptance
yet again. The prosecutor's offer of PTI
placement did not spring into being ex nihilo;
rather, it was by way of settlement of Pinho's
collateral attack on the constitutional
validity of his conviction. The relevant
"reason," then, for our Pickering analysis, is
plainly the reason for the settlement
agreement.

Id. at 211. In so holding, the court also rejected the

government's argument that it should look beyond the record to

consider any hidden reasons the state's attorney might have for

agreeing to the stipulated vacatur:

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 At oral argument the government contended that
the motives of state prosecutors and judges
might change over time and might not be
reflected in the record. Perhaps a new
prosecutor, reviewing old cases, might decide
that some of his predecessor's policies had
been unduly harsh. Perhaps such a prosecutor,
when presented with a post-conviction relief
claim brought by a defendant who had been
denied entry into a pre-trial diversion
program years earlier because of a now-
discredited policy, might decide to "do the
right thing," and help that defendant avoid
the immigration consequences of his guilty
plea. Perhaps a state judge, looking at the
case, would see a hard-working family man
threatened with deportation based on a
relatively minor crime committed a decade
earlier, and decide to help that hard-working
family man get around the federal immigration
laws. Perhaps, perhaps. We present this
hypothetical to highlight the fact that it is
precisely that: a hypothetical proposed by the
government about possible motives of state
actors nowhere found in the record. . . . We
cannot endorse a test which requires
speculation about, or scrutiny of, the reasons
for judges' actions other than those reasons
that appear on the record.

Pinho, 432 F.3d at 211. Thus, the only relevant question under

Pickering is whether the record itself establishes that the reason

for the stipulated order was based on a defect in the conviction,

and not rehabilitative or immigration-related grounds. See id.

Applying this inquiry to the record in Pinho, the Third Circuit

noted that Pinho "raised only one claim: ineffective assistance of

counsel . . . . The only basis for the vacatur appearing in the

order or the pleadings is Pinho's ineffective assistance claim. .

. . [T]herefore, Pinho's conviction was vacated 'based on a defect

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in the underlying criminal proceedings' and Pinho accordingly 'no

longer has a 'conviction' within the meaning of [the INA].'" Id.

at 215.

The persuasive analysis of the Third Circuit in Pinho

undermines each of the factors relied upon by the majority in

explaining why Rumierz's vacatur could not meet the Pickering test.

Indeed, the majority's attempt to distinguish Pinho, ante at 20

n.13, only further illustrates why Pinho supports Rumierz's case.

First, the majority asserts that the Pinho court had the benefit of

full state court transcripts that demonstrated that Pinho raised a

"valid" claim of ineffective assistance of counsel. Yet nowhere in

the Pinho decision did the Third Circuit state that its holding was

based on a finding that his underlying claim of error was valid or

meritorious. Nor would it have been appropriate for the court to

make such a judgement of validity. The concern in Pickering is

solely whether the claims serving as the basis of a vacatur are

related to defects in the conviction, rather than requests for

equitable or rehabilitative relief. Nothing in Pickering permits

the BIA or a reviewing court to re-assess the validity or strength

of the claims that led to a vacatur. Cf. Pickering, 23 I. & N.

Dec. at 624 (explaining that the BIA will "not look behind the

state court judgment to ascertain whether the court acted in

accordance with its own law in vacating the conviction"); see also

Pinho, 432 F.3d at 211 (refusing to scrutinize further the

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decisions of prosecutors or judges when the only basis for the

vacatur stated in the record was a claim of a defect in the

conviction). Thus, while the Pinho court certainly had the benefit

of a more extensive record than we have here, the decision in Pinho

rested on the court's assessment of the type of claim raised by the

petitioner, not its validity. See Pinho, 432 F.3d at 215. Here,

as in Pinho, the record shows that Rumierz's petition for post-

conviction relief was based on errors in his conviction, not

Pickering-proscribed grounds.

Second, the majority distinguishes Pinho by noting that

here we have a statement from the State's Attorney that Rumierz's

claims were not addressed or adjudicated by the state court. This

distinction is a non-starter. The Pinho decision also noted that

the state court in that case never reached the merits of Pinho's

claim of error in his state court conviction and that requiring an

adjudication of those claims would be contrary to Pickering. See

id. at 211 ("If the BIA in Pickering had meant to require an

adjudication of the merits of aliens' claims of substantive defects

in the original conviction in order to make out an adequate

'basis,' it could have said so. But it did not."). Thus, there

is no difference between the stipulation here and the settlement in

Pinho in terms of whether the state court addressed and adjudicated

the underlying claims of error.

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 Third, the majority notes that Pinho obtained a vacatur

of his conviction before the agency had to take action in his case,

whereas Rumierz obtained a vacatur after a final order of removal

was reached in his case. This distinction is inapposite for two

reasons. First, as I have explained above, the BIA effectively

reopened Rumierz's case, thus vacating the final order of removal.

Second, even assuming that the final order of removal remained in

place, the fact that Rumierz obtained a vacatur after the order

tells us nothing about whether the record evidence shows that the

vacatur meets the Pickering standard. This argument relates to the

majority's burden allocation analysis, not the Pickering analysis.

Here, as in Pinho, the record evidence shows that the stipulated

vacatur meets the Pickering standard, even assuming arguendo that

Rumierz has the burden.

Thus, as the Third Circuit's reasoning in Pinho

demonstrates, the factors relied upon by the majority here -- the

lack of an adjudication on the merits, uncertainty over the

validity of the petitioner's claims of error in his conviction, and

the possibility that the State's Attorney was motivated by factors

not disclosed on the record -- are all inappropriate grounds for

deciding that the BIA was not compelled to conclude that the

vacatur presented by Rumierz met the Pickering standard. Pursuant

to a proper analysis, the record compels a finding that Rumierz has

met the burden allocated to him by the BIA.

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 2. Whether the vacatur meets the Pickering standard

In order to determine whether a vacatur is tied to a

defect in the underlying conviction, rather than rehabilitative or

immigration-related purposes, the BIA starts by examining the order

itself. See Pickering, 23 I. & N. Dec. at 624. Often, the

statutory basis for the order will resolve whether the underlying

conviction remains valid for immigration purposes. Compare Matter

of Adamiak, 23 I. & N. Dec. 878 (BIA 2006) (holding that a

conviction vacated under Ohio Revised Code § 2943.031 for the trial

court's failure to advise the alien defendant of the possible

immigration consequences of a guilty plea is no longer a valid

conviction for immigration purposes) and Matter of Rodriguez-Ruiz,

22 I. & N. Dec. 1378, 1379-80 (BIA 2000) (holding that a conviction

vacated pursuant to Article 440 of the New York Criminal Procedure

Law, which is neither an expungement statute nor a rehabilitative

statute, did not constitute a conviction for immigration purposes)

with Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (holding that

a conviction vacated by operation of a state rehabilitative statute

still constitutes a conviction for immigration purposes).

Where the order does not specify its statutory basis, the

BIA will consider the grounds presented to the court by the

petitioner in his or her motion to vacate the conviction. See

Pickering, 23 I. & N. Dec. at 624 ("The resolution of this case .

. . turns on whether the conviction was quashed on the basis of a

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defect in the underlying criminal proceedings. In making this

determination, we look to the law under which the [] court issued

its order and the terms of the order itself, as well as the reasons

presented by the respondent in requesting that the court vacate the

conviction." (footnote omitted)); see also Pinho, 432 F.3d at 215

("To determine the basis for a vacatur order, the agency must look

first to the order itself. If the order explains the court's

reasons for vacating the conviction, the agency's inquiry must end

there. If the order does not give a clear statement of reasons,

the agency may look to the record before the court when the order

was issued. No other evidence of reasons may be considered.").

As mentioned above, the BIA will "not look behind the

state court judgment to ascertain whether the court acted in

accordance with its own law in vacating the conviction."

Pickering, 23 I. & N. Dec. at 624. Thus, if the record shows that

a state court vacated a conviction through a statutory mechanism

for addressing defects in the underlying conviction, the BIA will

not consider any suggestions by the government that the state court

was actually motivated by a desire to ameliorate the deportation

consequences rather than correct the defect. See id.; Matter of

Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379-80 (BIA 2000); see also

Pickering, -- F.3d at --; 2006 WL 1976043, at *4 n.3 ("When a court

acts pursuant to a law that allows it to act based only on the

merits of the underlying position, it is presumed not to have acted

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contrary to that law, solely to enable the [p]etitioner to avoid

adverse immigration consequences.").

In Rumierz's case, the order striking and amending his

conviction does not specify the statutory basis for the vacatur or

the nature of his claims for relief. However, the Deputy State's

Attorney's affidavit does explain that Rumierz filed a "Petition

for Post-Conviction Relief" in which he "alleged certain errors in

his earlier conviction in Windsor District Court, Vermont." The

affidavit does not state that Rumierz sought expungement through a

rehabilitative statute or that he claimed relief on immigration-

related grounds. The only reference in the affidavit is to errors

in his conviction, alleged in his motion for post-conviction

relief. While there is no statutory citation specified in the

affidavit, Vermont's post-conviction relief statute specifies that

relief is only available through that statutory mechanism on "the

ground that the sentence was imposed in violation of the

constitution or laws of the United States, or of the state of

Vermont, or that the court was without jurisdiction to impose the

sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack."

13 V.S.A. § 7131.24

24
The majority suggests that Rumierz might not have been able
to avail himself of Vermont's post-conviction relief because he was
no longer in custody in Vermont and had served his time for his
conviction. The notion that Rumierz, detained for ten years
pending removal due in part to this conviction for possession of
stolen property, could not properly file a motion for post-

-47-
 The BIA did not refer to these aspects of the affidavit,

stating instead that "there is no representation in the record

regarding any kind of defects" in Rumierz's conviction. Given that

the only representation in the record is that Rumierz sought and

obtained a vacatur after alleging errors in his conviction, the

BIA's reasoning is patently erroneous. The record here compels the

conclusion that the vacatur in this case meets the Pickering

standard.25 By contrast, there is simply no indication that Rumierz

sought or could have been granted post-conviction relief based on

the grounds proscribed by the BIA in Pickering.26 For these

conviction relief under the Vermont statute is plainly contrary to
Vermont law. See In re Stewart, 438 A.2d 1106 (Vt. 1981).
25
While I appreciate the majority's concern that some
petitioners may seek to avoid or delay deportation by taking
advantage of overburdened state attorneys, ante at 23 n.15, I
disagree that these policy concerns are implicated here. Rumierz,
pro-se at the time of the BIA proceedings, is relying not on his
own unsubstantiated claims that he alleged errors in his
conviction, but on the sworn statement of the State's Attorney in
his case. To be sure, this case would have been much easier if
Rumierz had supplied the BIA with his post-conviction relief
petition, but given the State's Attorney's acknowledgment that his
petition was based on "errors in his earlier conviction," I would
not characterize these actions as "gamesmanship" on his part.
26
The Sixth Circuit's recent decision in Pickering is
particularly on point here. See Pickering, -- F.3d --; 2006 WL
1976043. In that case, the court vacated the decision of the BIA,
noting that its "conclusion that [the court that vacated
Pickering's conviction] acted solely for immigration reasons can
only be reached by inference" and that inference was contrary to
the record. Id. at *5. Although the Sixth Circuit held that the
government had the burden of establishing removability, it noted
that even if the burden were with the petitioner, he met it. Id.
at * 4 n.3. Specifically, the court observed that "[t]he only
legal authority cited anywhere in the record of [the court that
vacated his conviction] allows it to act only to redress violations

-48-
reasons, I would vacate the BIA's decision and remand for

termination of the removal proceedings, without reaching the

question of whether the allocation of the burden in this case was

proper.

of the [p]etitioner's rights." Id. Thus, in order to have found
that the petitioner was removable on this record, the BIA must have
"assumed that [the court] ignored the legal basis the Petitioner
articulated for seeking to have his conviction quashed." Id. at *3.
The Sixth Circuit thus vacated the decision, holding that the
record compelled the BIA to conclude that the petitioner's
conviction was not vacated solely for rehabilitative or
immigration-related reasons. Id. at *5. Here, too, the only
references in the record regarding the basis of Rumierz's vacatur
are to his claims of "errors in his earlier conviction" and his
"Petition for Post-Conviction Relief." The inference that
Rumierz's conviction was vacated by stipulation for rehabilitative
or immigration-related purposes is flatly contrary to the record.

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