On October 25, 2019, Attorney General (AG) William Barr issued a decision in a case which he had, on May 28, 2019, directed the Board of Immigration Appeals (BIA or Board) to refer to him for his review and invited the parties and amici to brief the relevant questions. Matter of Thomas & Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019). In the instant opinion, AG Barr overruled prior BIA precedents Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005); Matter of Song, 23 I&N Dec. 173 (BIA 2001); and, Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), holding that the tests described in those cases will no longer govern the effect of state court orders that modify, clarify, or otherwise alter a criminal respondent’s sentence. Instead, for reasons similar to those given in an older Board decision, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F. 3d 263 (6th Cir. 2006), such orders will be given effect for immigration purposes only when they are based on a procedural or substantive defect in the underlying criminal proceeding. These state court orders, when based on reasons unrelated to the merits of the underlying criminal proceeding – such as rehabilitation or hardship – will have no effect for immigration purposes. The AG thus vacated the decisions below and remanded them to the BIA to reassess the effects of the relevant state court sentence alterations for immigration law purposes.
The opinion initially notes that noncitizens convicted of state crimes may face immigration consequences “based on the nature of the conviction and the length of the resulting sentence.” To avoid these consequences, some seek state court orders “retroactively vacating the conviction or altering the sentence.” At the time of this decision, there were 3 different Board tests to determine the legal effects of such orders, depending on how the state court describes its decision. But, stated AG Barr, the tests articulated in Matter of Cota-Vargas, Matter of Song and Matter of Estrada have no basis in the text of the Immigration and Nationality Act (INA), promote inconsistency in the application of the immigration law, and fail to advance “Congress’s intent to attach immigration consequences to certain convictions and sentences.” These cases were therefore overruled.
Going forward, held the AG, immigration courts will apply the Matter of Pickering test “in determining the immigration consequences of any change in a state sentence, no matter how the state court describes its order.” Such alterations will have legal effect for immigration purposes only when based on a procedural or substantive defect in the underlying criminal proceeding.
At the beginning of AG Barr’s analysis, he stated that the sole issue is the impact of a state court conviction that has been vacated, modified, clarified, or otherwise altered as far as the associated sentence under U.S. immigration law. The opinion then quotes the Pickering holding that where a court vacates a conviction based on a defect in the underlying proceedings, the respondent no longer has a “conviction” as that term is defined in the INA. If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, then the respondent remains “convicted” for immigration purposes.
In the instant 2 (joined) matter, Thomas and Thompson were convicted of the same state law offense, were charged with the same ground of removability, and both “petitioned the state courts to alter their sentences without alleging any procedural or substantive defects in the original proceeding.” Yet, because one received a “clarification” and the other a “modification”, the Board found Thomas was removable but Thompson was not. The AG stated that he had certified these cases “to address these inconsistencies and to clarify the appropriate treatment under the INA.”
Further in the opinion, AG Barr noted that the immigration law assigns clear consequences to one who has been convicted and sentenced for a state crime and that multiple BIA tests permit state courts to change those results well after the fact; while a state court may alter a conviction, it “does not have the authority to make immigration-law determinations.” Thus, concluded the AG, the Pickering test should apply to such state court orders and these alterations will have legal effect for immigration purposes when based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship, thus overruling Cota-Vargas, Song and Estrada. Congress has determined that one who is convicted of a crime that is sufficiently serious to warrant a significant sentence should be subject to removal. Subsequent modifications, concluded the decision, “do not correct legal defects, do not change the underlying gravity” of a noncitizen’s actions.
Lastly, in extending the Pickering test to “all forms of sentence alterations,” the AG considered and rejected other arguments made by the Respondents, including that the instant decision should have proceeded through the rulemaking (regulatory) process rather than via adjudication; AG Barr concluded that U.S. Supreme Court precedent confirms his authority as agency head to proceed via precedent decision. On remand, the BIA may review the record and consider any “appropriate requests” to reopen, to determine whether the state court sentence modifications herein arose as a result of a procedural or substantive defect, or for some other reason. Matter of Thomas & Matter of Thompson, 27 I&N Dec. 674 (A.G. 2019).
