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Matter of Mogtabi Hassan AZRAG, Respondent

Decided February 23, 2024

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Where a State court order granting a respondent’s motion to vacate a conviction does not 

indicate the reason for the vacatur, and there is no other basis in the record to independently 

establish the reason, the respondent has not satisfied his burden to show that the court 

vacated his conviction because of a substantive or procedural defect in his criminal 

proceedings.

FOR THE RESPONDENT: William M. Sharma-Crawford, Esquire, Kansas City, 

Missouri

BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration 

Judges.

PETTY, Appellate Immigration Judge:

An Immigration Judge found the respondent removable based on his 

convictions for two theft offenses and denied all relief from removal. We 

dismissed his appeal. The respondent then timely moved to reopen and 

terminate his removal proceedings because a State court vacated those 

convictions and permitted him to enter a guilty plea to a different charge. 

Because the respondent has not established that the State court vacated his 

original convictions because of a procedural or substantive defect in the 

underlying criminal proceedings, the motion will be denied.

I. BACKGROUND

The respondent, a native and citizen of Sudan, was admitted to the United 

States on November 17, 2015, and subsequently became a lawful permanent 

resident. On November 5, 2020, the respondent was convicted of two counts 

of theft under section 21-5801 of the Kansas Statutes Annotated and 

sentenced to 12 months’ imprisonment for each offense. Based on those 

convictions, the Department of Homeland Security charged the respondent 

with removability under sections 237(a)(2)(A)(i) and 237(a)(2)(A)(iii) of the 

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(i), (iii)

(2018), as a noncitizen convicted of a crime involving moral turpitude within 

5 years after admission and an aggravated felony theft offense as defined by 
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section 101(a)(43)(G) of the INA, 8 U.S.C. § 1101(a)(43)(G) (2018), 

respectively. The Immigration Judge found the respondent removable as 

charged and denied his applications for relief. The respondent appealed the 

denial of relief but did not challenge the Immigration Judge’s removability 

finding. We dismissed the respondent’s appeal in February 2023.

While the respondent’s appeal was pending, he sought post-conviction 

relief before a Kansas State court by filing a motion to withdraw his guilty 

pleas to the theft charges. The motion alleged that the respondent “was not 

competently advised by counsel of the nature of the plea agreement, its terms, 

the resulting convictions, or its potential collateral consequences.” The 

motion further stated that after discussion between the respondent’s new 

criminal defense attorney and the prosecutor, “the State and the defense 

agreed he should be permitted to withdraw his plea . . . .” The motion was 

not accompanied by any evidence to support the allegation that the 

respondent’s prior criminal defense counsel failed to competently advise the 

respondent. 

Five days later the State court issued an order granting the respondent’s 

motion to withdraw his guilty pleas and vacating his theft convictions. Other 

than “[h]aving reviewed the file, noting the agreement of the parties, and 

[having been] duly advised,” the State court did not provide any factual or 

legal basis for its order and did not identify any specific provision of law 

under which the order was issued. The respondent concurrently entered into 

a new plea agreement, in which he pleaded guilty to a single amended theft 

charge, with an agreed sentence of probation and 25 hours’ community 

service.

The respondent filed a timely motion to reopen his removal proceedings. 

See INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i) (2018). He contends

that his removal proceedings should be reopened and terminated because the 

convictions rendering him removable from the United States have been

vacated and his new conviction is neither within 5 years of his admission, as 

required for removability under section 237(a)(2)(A)(i) of the INA, 8 U.S.C. 

§ 1227(a)(2)(A)(i), nor was the term of imprisonment at least 1 year, as 

required for removability under sections 237(a)(2)(A)(iii) and 101(a)(43)(G) 

of the INA, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(G). The 

respondent maintains that the plea was vacated because of a defect in the 

underlying criminal proceedings, specifically, a violation of his

constitutional right to effective assistance of counsel. 

II. DISCUSSION

State court orders that vacate, modify, or otherwise alter a noncitizen’s 

criminal conviction or sentence have “legal effect for immigration purposes 
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when based on a procedural or substantive defect in the underlying criminal 

proceeding, but not when the change was based on reasons unrelated to the 

merits, such as the alien’s rehabilitation or an interest in avoiding an 

immigration consequence.” Matter of Thomas and Thompson, 27 I&N Dec. 

674, 675 (A.G. 2019); see also Andrade-Zamora v. Lynch, 814 F.3d 945, 948 

(8th Cir. 2016) (“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.” (citing Matter of Pickering, 

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

Gonzales, 465 F.3d 263 (6th Cir. 2006))). A respondent seeking reopening 

after the entry of a final administrative order of removal based on the vacatur 

of a conviction bears the burden to prove the conviction was vacated for a 

procedural or substantive reason. Matter of Chavez, 24 I&N Dec. 272, 274 

(BIA 2007);1 see also Njie v. Lynch, 808 F.3d 380, 384 (8th Cir. 2015) 

(“Motions to reopen are disfavored in removal proceedings . . . . [and] the 

movant bears a heavy burden to establish that proceedings should be 

reopened.”). 

Under our case law, reopening is warranted only if the conviction was 

legally unsound in the jurisdiction where it was entered at the time it was 

entered—put differently, where there was a “procedural or substantive 

defect” relating to the “merits” of the conviction. Matter of Pickering, 

23 I&N Dec. at 624. In determining whether a conviction was vacated based 

on a procedural or substantive defect, we consider the law under which the 

court issued its order, “the terms of the order itself, [and] the reasons 

presented by the respondent in requesting that the court vacate the 

conviction.” Id. at 625. 

The respondent has not met his burden to show that his 2020 theft 

convictions were vacated because of a procedural or substantive defect in his 

underlying criminal proceeding. The State court hearing the respondent’s 

post-conviction motion did not find that the respondent’s prior attorney had 

provided ineffective assistance of counsel and did not adopt or, indeed, even 

refer to the respondent’s allegations. Additionally, the State court did not 

specify the law under which it issued its order vacating the convictions. 

Unlike Matter of Dingus, 28 I&N Dec. 529, 537 n.14 (BIA 2022), where 

reasons on the face of the order and citation to the relevant statutory authority 

were sufficient to establish the State court’s rationale, here the court’s order 

1 In Matter of Chavez, we noted a split of authority on the question of which party bears 

the burden of proof in the context of a motion to reopen. 24 I&N Dec. at 273 (citing Nath v. 

Gonzales, 467 F.3d 1185 (9th Cir. 2006), and Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 

2006)). In this case we address only whether the evidence presented satisfies that burden.
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provides no substantive explanation and cites no statutory authority. We 

therefore must look beyond the four corners of the order. See Matter of 

Pickering, 23 I&N Dec. at 625. 

We have explained that where the reasons for a vacatur are not clear on 

the face of the order, extrinsic evidence should be provided and considered, 

and may be sufficient to establish the vacatur was premised on a procedural 

or substantive defect in the criminal proceedings. See Matter of Dingus,

28 I&N Dec. at 536, 537 n.14 (explaining that the party who bears the burden 

of proof should provide documentary support relating to the reasons for a

modified or amended order). Here, however, the respondent’s 

post-conviction motion merely alleged, without additional evidentiary 

support, that he received ineffective assistance of counsel. Just as statements 

of counsel are not evidence of what happened to a respondent in the past, 

Matter of Mariscal-Hernandez, 28 I&N Dec. 666, 673 (BIA 2022), they 

likewise cannot substitute for evidence of deficient performance by an 

attorney, findings of fact regarding an attorney’s conduct, or conclusions of 

law regarding the violation of a defendant’s constitutional rights.

In this case, the State court made no findings of fact and rendered no 

conclusions of law. Instead, the order simply recited that the court had 

“reviewed the file, not[ed] the agreement of the parties, and [had been] duly 

advised.” Although the respondent may have sought post-conviction relief 

based on a claim that the underlying proceeding was defective, his “motive 

is relevant only to the extent that the [State] court relied upon it in quashing 

the conviction.” Pickering, 465 F.3d at 267. Where a State court order 

granting a respondent’s motion to vacate a conviction does not indicate the 

reason for the vacatur, and there is no other basis in the record to 

independently establish the reason, the respondent has not satisfied his 

burden to show that the court vacated his conviction because of a substantive 

or procedural defect in his criminal proceedings. The bare fact that the State 

court granted the respondent’s motion does not establish the State court’s 

reason for doing so. Because the respondent has not demonstrated that the 

convictions underlying his removability were vacated because of a 

procedural or substantive defect in his criminal proceedings, we will deny 

his motion to reopen and terminate.

ORDER: The motion is denied.