Alien's Burden in Reopening Removal Case Based on Vacating Criminal Conviction


The BIA in a recent case called Matter of Chavez-Martinez, 24 I&N Dec. 272 (BIA Aug. 31, 2007), held that an alien seeking to reopen removal proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes.

In Chavez-Martinez, the alien was a native and citizen of Mexico who was admitted to the U.S. as an immigrant on April 1, 1983. On November 30, 2001, removal proceedings were commenced against the alien as a consequence of his Illinois conviction for the offense of criminal sexual abuse. An Immigration Judge (IJ) ordered the alien removed on January 31, 2002. Respondent appealed. During the appeal, the Respondent’s conviction was vacated and Respondent was resentenced to simple battery. Respondent filed a motion to remand. The Immigration Court decided that the conviction for sexual abuse remained valid for immigration purposes because Respondent did not show evidence that the conviction was vacated due to procedural or substantive defect in the criminal proceedings.

Respondent appealed this decision to the BIA which was dismissed. Respondent filed a motion to reopen with the BIA based on new law which the BIA denied holding that the law stays the same in that jurisdiction. The BIA stated in its decision “As a general rule, the Board gives full faith and credit to state court actions that purport to vacate an alien's criminal conviction. However, if a court vacates an alien's criminal conviction solely on the basis of immigration hardships or rehabilitation, rather than on the basis of a substantive or procedural defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes and will continue to serve as a valid factual predicate for a charge of removability despite its vacatur.” Because the Respndent in Chavez-Martinez presented no evidence to prove that his conviction was not vacated solely for immigration purposes, the BIA held that Respondent failed to meet his burden of showing that his motion to reopen should be granted.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail; visit at

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