United States Court of Appeals

For the Eighth Circuit

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No. 15-2004

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Arturo Andrade-Zamora

lllllllllllllllllllllPetitioner

v.

Loretta E. Lynch, Attorney General of United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: December 15, 2015

 Filed: February 26, 2016

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Before WOLLMAN, LOKEN, and BYE, Circuit Judges.

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BYE, Circuit Judge.

Arturo Andrade-Zamora petitions for review of a decision by an immigration

judge (IJ) – affirmed without opinion by the Board of Immigration Appeals (BIA) –

pretermitting his application for cancellation of removal. The IJ pretermitted

Andrade-Zamora's application for cancellation of removal because Andrade-Zamora

committed theft in the fourth degree, a crime involving moral turpitude. Andrade-
Zamora argues he is eligible to apply for cancellation of removal despite this

conviction because (1) a state court vacated his conviction for theft in the fourth

degree; and (2) his conviction for a crime involving moral turpitude would preclude

him from applying for cancellation of removal only if he was admitted to the United

States within five years of committing the offense, which he was not. We deny the

petition for review.

I

Arturo Andrade-Zamora was born in Villachuato, Mexico. He came to the

United States at an unknown date and has lived in the United States since without

ever being lawfully admitted. 

In February 2014, the government served Andrade-Zamora with a Notice to

Appear for removal proceedings, charging him with being a removable alien because

he was present in the United States without having been admitted or paroled. At a

hearing in May 2014, Andrade-Zamora, through counsel, admitted the factual

allegations and conceded he wasremovable, but indicated he would seek cancellation

of removal. 

Three months later, Andrade-Zamora pled guilty in Iowa state court to one

count of theft in the fourth degree and two counts of falsifying a driver's license or

non-operator's identification application. The state court sentenced him to one year

of probation and ordered him to pay a fine. As a result of these convictions, on

November 7, 2014, the government filed a second notice charging Andrade-Zamora

with being a removable alien, this time for committing a crime involving moral

turpitude. 

Andrade-Zamora denied this allegation and filed a motion for cancellation of

removal. Along with the motion, Andrade-Zamora filed an order from the Iowa state

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court that made his conviction for theft in the fourth degree and one of the two counts

of falsifying a driver'slicense "a nullity" because the parties had discovered "material

evidence" that could not have been discovered before Andrade-Zamora pled guilty. 

On the remaining count of falsifying a driver's license, the state court modified

Andrade-Zamora's sentence to a suspended sentence of 179 days of incarceration. 

The state court vacated Andrade-Zamora's convictions on November 21, 2014 – two

weeks after the government filed its notice alleging Andrade-Zamora wasremovable

as a result of these convictions.

The government moved to pretermit Andrade-Zamora's application for

cancellation of removal, and after a hearing, the IJ granted the government's motion. 

The IJ held that although the state court vacated Andrade-Zamora's conviction for

theft in the fourth degree, this conviction still qualified as a crime involving moral

turpitude because Andrade-Zamora had not met his burden to prove the conviction

was vacated on the merits, rather than for immigration purposes. Therefore, the IJ

found this conviction prohibited Andrade-Zamora from applying for cancellation of

removal, and it ordered Andrade-Zamora removed to Mexico.

The BIA affirmed the IJ's decision without opinion on April 30, 2015. 

Andrade-Zamora timely petitioned for review.

II

Andrade-Zamora argues the IJ erred by finding his conviction for theft in the

fourth degree qualified as a crime involving moral turpitude even though (1) a state

court vacated this conviction; and (2) he had not been "admitted" to the United States

when he committed the offense. We review the BIA's factual determinations under

a substantial-evidence standard and its legal conclusions de novo. Gonzalez Cano v.

Lynch, 809 F.3d 1056, 1059 (8th Cir. 2016). We give "substantial deference to the

BIA'sinterpretation of the statutes and regulationsit administers." Spacek v. Holder,

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688 F.3d 536, 538 (8th Cir. 2012). Where, as here, the BIA adopts the findings or

reasoning of the IJ, we review the IJ's decision as part of the final agency action. 

Singh v. Lynch, 803 F.3d 988, 991 (8th Cir. 2015).

A

Andrade-Zamora argues his conviction for theft in the fourth degree does not

qualify as a crime involving moral turpitude because a state court vacated the

conviction. If a court vacates an alien's criminal conviction for a reason unrelated to

the merits of the case – such as to avoid immigration consequences or for

rehabilitative reasons – rather than to correct a procedural or substantive defect, the

conviction will still stand for immigration purposes despite its vacatur. In re

Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev'd on other grounds, Pickering v.

Gonzales, 465 F.3d 263, 271 (6th Cir. 2006); see also Viveiros v. Holder, 692 F.3d

1, 3 (1st Cir. 2012) (noting circuit courts have "uniformly" followed this rule). The

parties dispute (1) which party bears the burden to prove the reason for vacatur, and

(2) whether that party met its burden.

1

Under the Immigration and Nationality Act (INA), the alien bears "the burden

of proof to establish that [he] . . . satisfies the applicable eligibility requirements" for

cancellation of removal, 8 U.S.C. § 1229a(c)(4)(A)(i), including that he was not

"convicted of an offense" that would disqualify him from cancellation of removal, 8

U.S.C. § 1229b(b)(1)(C). An alien stands "convicted of an offense" that disqualifies

him from cancellation of removal if the conviction was vacated to avoid immigration

consequences. Pickering, 23 I. & N. Dec. at 624. Thus, the INA places the burden

on the alien to prove not only that he has no current disqualifying convictions, but

also that he has no prior disqualifying convictions that were vacated to avoid

immigration consequences. This statutory burden necessarily requires the alien to

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prove the reason his prior conviction was vacated. As such, we hold that in order to

apply for cancellation of removal, the alien must prove his conviction was vacated for

a substantive or procedural reason, not for immigration or rehabilitative purposes. 

Andrade-Zamora argues that when the alien applies for cancellation of removal

the government bearsthe burden to prove the reason the disqualifying conviction was

vacated, as it does when it charges the alien with being deportable for committing an

offense that is later vacated. See Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107

(9th Cir. 2006). But deportation cases are inapposite, because the burden of proof is

different. While the government bears the burden to prove the alien is deportable or

removable, it is the alien's burden under the INA to prove he is eligible for

cancellation of removal. Thus, the burden properly falls on the government to prove

the reason for vacatur when it also bears the burden to prove the alien committed a

deportable offense. But the burden does not fall on the government to prove the

reason for vacatur when it is the alien's burden to prove he did not commit an offense

that disqualifies him from cancellation of removal. In that instance, the alien must

prove the reason for vacatur.

2

Andrade-Zamora did not meet his burden to prove the Iowa state court vacated

his conviction for a substantive or procedural reason, and not for immigration

purposes. First, the order itself does not establish that the state court vacated

Andrade-Zamora's conviction for a substantive or procedural reason. The state court

vacated the conviction based on "material evidence," but it did not explain what

"material evidence" the parties discovered that led it to vacate the conviction, and the

term"material evidence" is not self-defining. For instance, "material evidence" could

mean the parties discovered Andrade-Zamora was factually innocent of the offense

(a substantive reason for vacatur), or it could mean the parties discovered AndradeZamora would be removed from the country due to the offense (an immigration

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reason for vacatur). There is simply nothing in the order to indicate the reason the

state court vacated the theft conviction, and therefore the order alone does not prove

the conviction was vacated for a substantive or procedural reason. See Rumierz v.

Gonzales, 456 F.3d 31, 41 (1st Cir. 2006) ("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.'").

Second, we find the timing and effect of the order relevant because they

suggest the state court vacated the conviction for immigration purposes. The state

court vacated Andrade-Zamora's conviction only two weeks after the government

moved to remove Andrade-Zamora based on this conviction. And the state court

modified Andrade-Zamora's sentence on the remaining count of falsifying a driver's

license to 179 days' imprisonment, which appears to be an attempt to fit the

conviction within the "petty offense" exception to removal for a crime involving

moral turpitude. The timing and effect of the order therefore raise an inference the

1

state court did not vacate the conviction on a substantive or procedural ground, but

rather to avoid the immigration consequences of the conviction.

More importantly, Andrade-Zamora provided no information to prove why the

state court vacated his conviction. He maintained the order spoke for itself and never

presented any other evidence on the issue, even though he was in the best position to

do so. See In re Chavez-Martinez, 24 I. & N. Dec. 272, 274 (BIA 2007) ("In this

regard, we note that the respondent was a direct party to the criminal proceeding

Under the INA's petty offense exception, an alien convicted of a crime

1

involving moral turpitude may still be admitted to the United States if the maximum

term of imprisonment for the crime does not exceed one year, and the alien was not

sentenced to a term of imprisonment in excess of six months. 8 U.S.C. §

1182(a)(2)(A)(ii)(II). Thus, Andrade-Zamora's modified sentence of 179 days'

imprisonment for falsifying a driver'slicense fit within the 180-day limit for the petty

offense exception. 

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leading to the vacation of his conviction and is therefore in the best position to know

why the conviction was vacated and to offer evidence related to the record of

conviction."). Without presenting any evidence, he failed to meet his burden, and the

IJ properly found his conviction for theft in the fourth degree qualified as a crime

involving moral turpitude despite its vacatur.

B

Andrade-Zamora next argues that even if his vacated conviction for theft in the

fourth degree qualifies as a crime involving moral turpitude, this conviction does not

preclude him from applying for cancellation of removal because he had not been

"admitted" to the United States when he committed the offense. 

The Attorney General has discretion to cancel removal of an alien who is

inadmissible or deportable. 8 U.S.C. § 1229b(b)(1)(C). Before the alien can apply

for cancellation of removal, he must prove he "has not been convicted of an offense

under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)," 8 U.S.C. § 1229b(b)(1)(C),

which includes "crimes involving moral turpitude" under § 1227(a)(2)(A). That

section provides, "Any alien who–(I) is convicted of a crime involving moral

turpitude committed within five years . . . after the date of admission, and (II) is

convicted of a crime for which a sentence of one year or longer may be imposed, is

deportable." 8 U.S.C. § 1227(a)(2)(A) (emphasis added).

Andrade-Zamora argues the cross-reference in § 1229b(b)(1)(C)to an "offense

under section . . . 1227(a)(2)" incorporates all of the requirements in § 1227(a)(2),

including that the alien must commit the crime involving moral turpitude within five

years "after the date of admission." Andrade-Zamora, however, was never lawfully

admitted to the United States, and therefore he argues his conviction for a crime

involving moral turpitude does not preclude him from applying for cancellation of

removal because he did not commit the offense within five years of the date of

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admission. In other words, the IJ erred when it found he was "convicted of an offense

under section . . . 1227(a)(2)," because § 1227(a)(2) only applies to aliens who have

been lawfully admitted to the United States, not unlawful entrants like him.

This Court has not addressed whether an alien is precluded from applying for

cancellation of removal for being "convicted of an offense under section . . .

1227(a)(2)" if he was never admitted to the United States. 8 U.S.C. § 1229b(b)(1)(C). 

The BIA takes the position that the cross-reference in § 1229b(b)(1)(C) to an offense

under § 1227(a)(2) should be read only as a cross-reference to the list of offenses in

the statute, not as a cross-reference to the statute as a whole. Matter of Cortez, 25 I.

& N. Dec. 301, 307-08 (BIA 2010) (citing Gonazlez-Gonzalez v. Ashcroft, 390 F.3d

649 (9th Cir. 2004)). Therefore, this statute applies regardless of the alien's

admission status. Id.

We must decide whether the BIA's interpretation of this statute is entitled to

Chevron deference. Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837

(1984). Chevron is a familiar two-step framework. First, we use traditional tools of

statutory construction to determine if Congress has unambiguously spoken to the

question at issue. Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 940 (8th Cir.

2014). If the statute is unambiguous, we simply apply the statute. Id. If the statute

is ambiguous, we proceed to the second step of Chevron and apply the agency's

interpretation if it "is based on a permissible construction of the statute." City of

Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013).

First, we find the statute ambiguous. It does not expressly specify whether it

incorporates § 1227(a)(2) in its entirety – including the immigration characteristics

– or merely the list of offenses. Congress has not unambiguously spoken to the issue,

and we must defer to the BIA's interpretation if it is based on a permissible

construction of the statute. 

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We hold it is. Section 1229b(b)(1)(C) prohibits an alien from applying for

cancellation of removal if he has been "convicted of an offense under" § 1227(a)(2). 

That § 1229b(b)(1)(C) refers only to "an offense under" § 1227(a)(2) suggests it

incorporates only the list of offenses and not the entire section – otherwise, it would

prohibit an alien from applying for cancellation of removal if he violates §

1227(a)(2). 

The structure of § 1227(a)(2) supports this construction as well. Section

1227(a)(2) lists various offenses and punishes the alien with an immigration

consequence if he commits the offense. So if an alien is convicted of a crime

involving moral turpitude (the offense), he is deportable if he committed the offense

within five years of his date of admission (the immigration consequence). Section

1229b(b)(1)(C) only prohibits an alien from applying for cancellation of removal if

he is "convicted of an offense" under § 1227(a)(2), and given the structure of §

1227(a)(2), the natural reading of this cross-reference is that it refers only to the list

of offenses in 1227(a)(2), not the immigration consequences. After all, it is not

possible to be "convicted" of being deportable (the immigration consequence) – only

to be "convicted" of a crime involving moral turpitude (the offense). The structure

of § 1227(a)(2) therefore supports the BIA's construction that § 1229b(b)(1)(C)

incorporates only the list of offenses without incorporating all the immigration

characteristics in § 1227(a)(2).

Finally, it is reasonable to apply § 1227(a)(2) to all aliens applying for

cancellation of removal regardless of their admission status. Otherwise, if an alien

committed a crime involving moral turpitude, he could only apply for cancellation of

removal if he entered the country unlawfully, not if he went through proper

immigration proceedings and was lawfully admitted to the United States. The

unlawful entrant would benefit simply because he did not follow proper entry

procedures. The BIA's construction of § 1229b(b)(1)(C) avoids this illogical result.

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Every circuit that has interpreted § 1229b(b)(1)(C) has agreed with the BIA,

either on the grounds that the statute is unambiguous or that the BIA's construction

is permissible and entitled to Chevron deference. See Hernandez v. Holder, 783 F.3d

189, 195 (4th Cir. 2015) (Chevron deference); Mancilla-Delafuente v. Lynch, 804

F.3d 1262, 1265 (9th Cir. 2015) (same); Coyomani-Cielo v. Holder, 758 F.3d 908,

915 (7th Cir. 2014) (same); Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)

(unambiguous). We join our sister circuits and find the BIA's construction of §

1229b(b)(1)(C) is permissible and therefore entitled to Chevron deference.

The IJ did not err when it pretermitted Andrade-Zamora's application for

cancellation of removal on the grounds that he committed an offense under §

1227(a)(2), even though he was never admitted to the United States.

III

For the foregoing reasons, we deny the petition for review.

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