F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L U I S M A

X I M I N O B A L L I

N A S

- L U C E R

O , P etitioner
,

v

.

M E R R I C K B

. G A R

L A N D , Attorney General, Respondent. N o. 17-73260

Ag ency No. A200-154-807

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted March 15, 2022 San F rancisco, California

F iled Aug ust 15, 2022

B efore: W illiam A. F letcher, Ronald M. Gould, and Daniel P. Collins, Circuit J udg es.
Opinion by

J udg e W

. F letcherB A L L I N A S -L U C E R

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. G A R

L A N D 2

SUMMARY *

Im m igration

Granting L uis Max imino B allinas-L ucero’s petition f

o r review of a decision of the B o ard of I mmig ration Appeals,

a n d remanding
, the panel held that: 1) a n applica n t f

o r

c a n c ellation of removal bears the burden of proving that a

co n v iction was vacated because of a substantive or procedural d e f e ct in the criminal proceeding s, and not solely f o r immig ration pu r

p o ses or for rehabilitative or equitable
reasons; and 2 ) B allinas-L ucero carried this burden of proof.

I n 2012, B a llinas-L ucero pleaded g uilty
, without counsel,
to six misdemeanor theft charg es. T he B I A later concluded that his petty theft convictions were crimes involving moral turpitude that rendered him inelig ible for canc e l l a tion o f removal. B allinas-L

u cero moved the Superior Court, throug h counsel and p ursuant to Cal. Penal Code § 1018, to withdraw his g u i l t y p leas and set aside his convictions. I n his Memorandum of Points and Authorities, he wrote that he was afraid for his safety in jail, ig norant o f his rig h ts in court, a nd did not have a work i ng knowledg e of Eng lish. He wrote, further, that the Superior Court judg e t o ld him that if he pleaded rig ht away he would be g iven credit for time served and released. W ithin a few minutes, h e had p leaded g uilty without having read the police reports or consulting an attorney

. He wrote that he did not understand that as soon a s he pleaded g uilty his fate was sealed not only with the courts but with immig ration.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.B A L L I N A S -L U C E R

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L A N D 3

The Superior Court g r anted h is motion, and B a llinasL ucero pleaded g uilty to v iolating Cal. Penal Code § 368(d), theft from an elder adult. B al linas-L u cero moved to r eopen his immig ration proceed i n gs

. The B I A g ranted the motion, but ultimately decided that B allinas-L ucero failed to meet his burden of proof as to the nature of the vacatur of his convictions.

The p anel e x p lained that vac a t e d c o nvictions remain valid f or immig ration purposes if they are vacated solely f o r

reasons u nrelated to the merits o f the underly i ng criminal proceeding s, that is, e quitable, rehabilitative, or immig r ation

reasons. However, a conviction v a c a t ed on the basis of a defect in the u nderlying criminal proceedings i s no long er valid for immig ration purposes.

The panel h eld that a

p plicants for cancellation of removal bear the burden of p roving that their vacated convictions a re not v alid for immig ration purposes. Th e p a n el r e lied on P e reida v

. W

ilkinson
, 141 S. Ct. 754 (2021), where the Supreme Court held that because Pereida bore the burden o f proving his elig ibility for cancellation, in the f a ce o f amb i guous state court r ecords, any uncertainty about whether he s t o od convicted of a disqualify ing crime was enoug h to defeat his application for relief.

Nex t, the p anel concluded that B allinas-L ucero carried that b urden, ex plaining that the record compelled the conclusion that his convictions were vacated due t o l e g al defects i n h i s p l eas. The panel o bserved that, under In re Pickering
, 2 3 I

. & N. Dec. 6 21 (B I A 2003), the B I A considers: (1) the law under which the court issued its order, (2) the lang u ag e of the c o u r t ’ s order, and (3) the reasons provided by the noncitiz en in the request for post-convictionB A L L I N A S -L U C E R

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r e l i ef. The B I A concluded that B allinas-L ucero’s evidenc e (the statute u nder which vacatur was g ranted, Cal. Penal Code § 1018, and his Memorandum o f Points a nd A uthorities) was “inconclusive” as to wh e t h er his convictions w ere vacated “on the merits.”

The p anel disag reed. F irs t , the p anel concluded that the
g rounds for allo w i n g w i thdrawal o f a g uilty plea under Cal. Penal Code § 1018 are substantive and procedural defects in the underlying proceeding

. Second, the panel concluded that
any reasonable a djudicator r eading B a llinas-L ucero’s Memorandum would b e required to find that th e gr o unds asserted pertained overwhelming ly to substantive a nd procedural defects. T hird, the panel concluded that the B I A erred, under In re Pickering
, by finding dispositive the absence of a

ny statement b y the court reg arding the reasons for permitting the withdrawal of the g uilty plea.

The p anel remanded to the B I A to determine i n t h e first instance (1) w hether B allinas-L ucero’s remaining conviction under Cal. Penal Code § 368(d) qualif i es as a CI MT, a

nd if
so, whether th e petty offense ex ception under 8 U .S.C. § 1182(a)(2)(A)(ii)(I

I ) applies to it; a

nd (2) whether B a llinasL ucero satisfies the other statutory requireme nts for cancellation of removal.B A L L I N A S -L U C E R

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COUNSEL

Richard L ucero (arg

ued), L aw Office of Rich a rd L ucero, L os Ang eles, California; Rosana K i t W ai Cheung
, L aw Offices of Rosana Kit Wai Cheung
, L os Ang eles, California; for Petitioner.

Edward E. W ig g e rs (arg u e d )
, Senior L itig ation Counsel; Mary J ane Candaux
, Assistant D irector; Office o f I mmig r a tion L itig ation, Ci v i l Division, United States Department of J ustice, W ashing ton, D.C.; for Respondent.

OP INION

W

. F L ETCHER, Circuit J udg e:

L u is Max imino B allinas-L ucero petitions for review o f the decision of the B oard of I mmig ration Appea l s (“B I A”) dismissing his ap p e al f

rom an order of an I mmig r ation J udg e (“I J ”) deny ing his a pplication for cancellatio n o f removal. The B I A held that B allinas-L u cero was statutorily barr e d from cancellation of removal under 8 U .S.C. § 1229b(b)(1)(C) because, in the view of the B I A
, h i s s i x misdemeanor convictions f o r p e t t y t h e f t r e m a ined convictions for immig r ation p urposes even after they had been vacated b y a California Superior Court.

W e hold that under Pereida v

. W ilkinson , 141 S. Ct. 754 (2021), an applicant f

or cancellati o n o f removal b ears the burden of pro v ing that a state-court conviction was vacated because o f a substantive or procedural defect in the criminal proceed i n gs , and not solely f or immig ration purposes or for rehabilitative or equitable reasons. W e hold, further, thatB A L L I N A S -L U C E R

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B allinas-L

ucero carr ied this burden o f proof. The record compels a finding tha t the Superior Court vacated his six misdemeanor convictions because of substantive o r procedural defects in the c riminal proceeding s, and did not do

so solely for immig ration p u r poses or for rehabilitative o r

e q u i t a ble reasons. After vacatur o f h is six misdemeanor convictions, B allinas-L

ucero was convicted of a sing le misdemeanor that may qualify for the petty offense ex c eption under 8 U.S.C. § 1182(a)(2)(A)(ii)(I I ), which wou l d r e nder him statutorily

elig ible for cancellation of removal.

W e therefore g rant the petition for review and remand the

c a s e to the B I A so that it may decide in the first instance whether B all i n a s

- L ucero’s sing le petty theft conviction is a conviction that falls w ithin the petty offense ex ception under 8 U.S.C. § 1 182(a)(2)(A)(ii)(I I ), and whether he satisfies the other statutory c riteria for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

I . B ackg round

A. F actual B ackg round

B a llinas-L ucero was born in Puebla, Mex ico, in 1969. He entered the United States w ithout inspection in 1988 and has resided con t inuously in the U nited States since 1996. B allinas-L

ucero is married and has three child r en, two o f whom are U.S. citiz ens. His parents are lawful p e r m a n ent residents of the United States. Prior to being detained by the U.S. Department o f Homeland Security (“DHS ”)
, B a llinasL ucero lived in Tustin, California, and worked as a manag er at a B urg er King restaurant.B A L L I N A S -L U C E R

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On J a nu a ry 4, 2012, B allinas-L ucero was arrested at his workplace. He was arraig ned in the Orang e County Superior C o urt two day s later on six misdemeanor charg es, three f o r “T h e f t f rom elder adult” under California Penal Code § 368(d) and three for “The f t by employ ee – under $400” under California Penal Code §§ 484(a), 488, 5 0 8. The charg es stemmed from three d isputes reg arding chang e g iven
to a disabled customer and her careg iver o n D ecember 8, 2011, December 16, 2011, and J anuary 4, 2012.

B a llinas-L ucero h ad never been a rrested before. W ithout
repr e s e n tation by an attorney , he pleaded g uilty to all six charg es the same day he w as arra i gned. The court minutes from his J anuary 6
, 2012, arraig nment state that a Spanish interpreter was pre s e nt and that B allinas-L ucero was “formally arraig ned and in f o rm e d of the charg es.” The minutes state that B allinas-L ucero “understands [his] righ t s

as ex plained,” and “ understands [the] c o n s equences of the plea.”

The Superior Court sentenced B a llinas-L ucero to six day s in county jail and three y ears of i nformal probation on the theft from an elder a dult charg es. I t stay ed his sentence on the theft by employ ee charg es. B allinas-L ucero was credited with time served and released the same day

.

B . I nitial I mmig ration Proceeding s

Several d a y s a f

ter his release from jail, DHS detained B allinas-L

ucero and issued a Notice to Appear in removal
p r o c e e d i n g s

. D H S c h a r g e d h i m w i t h v i o l a t i n g § 212(a)(6)(A)(i) of t h e I mmig ration and Nationality A ct (“I NA”), 8 U .S.C. § 1182(a)(6)(A)(i), for entering the United States without being admitted or paroled.B A L L I N A S -L U C E R

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B a llinas-L ucero c o n ceded removability during a mast er

c a l e ndar h earing on J anuary 31, 2012. Throug h counsel, h e filed an I

- 589 application for a sy lum, withholding of removal, and relief from removal under the Convention Ag ainst Torture (“CAT”). He also a pplied f or cancellation of removal and adjustment of status under 8 U .S.C. § 1229b(b). T o be elig ible for cancellation of removal, an applic a n t g enerally
must demonstrate, inter ali a , that he o r she has not been convicted of an o ffense under 8 U.S.C. § 1182(a)( 2 )
, w h ich renders inadmissable applicants convicted of certain crimes, in c l u ding crimes involving moral turpitude (“CI MTs”) o r

cr i m e s i n v o lving controlled substances. Id. § 1229b(b)(1)(C). Petty theft in violatio n of certain statutes, including California Penal Code §§ 484, 488, is a CI MT. Castillo-Cruz v. H older
, 581 F .3d 1154, 1159 (9th Cir. 2009) (collecting cases) ; s ee also Silva v. Garland , 993 F

. 3d 705, 716–17 (9th Cir. 2021) (casting doubt on the reasoning of our prior § 484 CI MT holding s, but concluding they remained binding )

. However,

a noncitiz en w ith only one conviction f o r a C I MT crime is
not inadmissible if the crime qualifies un d e r t h e “petty offense e x ception.” Castillo-Cruz
, 581 F .3d at 1157 (citing 8 U.S.C. § 1182(a)(2)(A)(ii)(I I )). A CI MT qualifies under the petty offense ex ception if “the max imum penalty possible for the crime of which the alien w as convicted

. . . did not

ex c e ed imprisonme n t fo r o ne y ear and

. . . the alien was not sentenced to a term of imprisonment in ex c e s s of [six ] months.” Lafarga v. INS , 170 F .3d 1213, 1214–15 (9th Cir. 1999) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(I I )).

B a llinas-L ucero appeared for his first merits h e a ring before an I J o n April 9, 2012. H e testified throug h an interpreter. On direct ex amination, B alli n as-L ucero briefly
t e s t i f i ed about his fear of returning to Mex ico. O n crossex a mination, the g overnment attorney questioned him aboutB A L L I N A S -L U C E R

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his theft c onvictions. The attorney asked, “W ho d id y ou steal from? ” B allinas-L

uce ro responded that he was “accused o f having taken the chang e from a customer.” He e x plained that this customer, a woman, was not elderly
, but “not doing
, not

so well,” or, in the words of the g o vernment’s attorney , was “mentally handicapped.”

The I J also questioned B allinas-L ucero. The I J asked him if he had pleaded g uilty to the theft c harg es. B allinas-L ucero responded, “[ I ] t was the first time I ever g one to court and it

was in O r a n g e and I really had no idea what to say , whether
to say y e s or no.” He further testified about h i s l a ck o f

ex p erience in criminal court and his failure to understand the charg es ag ainst him:

[ W ] hen I went to court, they read me the charg es, but every

thing was c o dified. I t was all in codes, so nobody said to me specifically that this is f

or this, o r that is for that. And the translator j u s t said to me to say y es, simply

a n d uh-huh. After I was a ccepted, af t e r I accepted or ag reed to the charg es, the attorney asked m e w h at the charg es had been and I told, I told her or hi m , I
, I don’t even know what they really were, uh-huh. And
, and I

was told by the attorney that they have to

ex p lain them to me or read them to m e a n d I said I don’t know. This was the first time I ’ m ever in court.

B allinas-L

ucero sai d that h e did not h ave an a ttorney to represent him. He h ad “only a translator.” W hen the I J pressed him as to why h e did not a sk for an attorney , B allinas-L

ucero answered, “I ’m sorry , perhaps this wa s myB A L L I N A S -L U C E R

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i gn orance because it w as my first time in court. I reall y didn’t know what I

was supposed to do.”

Th e I J asked B allinas-L

ucero a bout the circumstances underlying the theft charg es. B allinas-L ucero ex plained that he was arrested at his wo rkplace, and that it was a c areg iver for the p erson whose c hang e he was a ccused of taking w ho “caug ht” him. He said the customer in question was a reg ular
at the B urg e r King . B allinas-L ucero testified that he did not steal f rom the customer, but instead that the customer was confused about the p rice of her order, w hich had not been her usual order.

The I J concluded the hearing stating , “[ U] nfortunately , I
cannot alter y our conviction and it appears y o u pled g uilty to it. I f y ou think y o u were w rong ly convicted, y our only option would be to g o back to that c ourt a n d t r y to g et it to correct, it’s what, y o u believe is an error.” The I J said that he credited B allinas-L

ucero’s testimony as to his fears about

r e t u r ning to Mex ico b ut found that h e was n e vertheless inelig ible for asy lum, withholding
, and CAT protection. The I J offered him voluntary d eparture, b ut B allinas-L ucero refused to waive his rig ht to appea l t h e I J ’s decision a nd elected instead to appeal the I J ’s decision to the B I A.

I n an oral decision, the I J denied Ba l l i n as-L ucero’s applications f

or asy lum, withholding
, CAT prot e c t ion, a nd cancellation o f removal. T h e I J questioned the v alidity o f B allinas-L

ucero’s criminal convictions:

[ T] he Court d id ask how he committ e d this offense and from what respondent said he did, i t d i d not appear he was g uilty

. Realiz ing h e

was not represented, b elieving that he mayB A L L I N A S -L U C E R

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have, a s he s a y s, not understood since they

were a ll talking in c ode, there may have been a miscarriag e of justice here.

The I J held that because the convi c t i o n s nevertheless “appear[ ] proper” B alli n a s

- L u c e r o w a s s t a

tutorily barred from cancellation of removal for having b een convicted o f “ m ore than t w o ” CI MTs and was not elig ible for the p e tty theft

ex c e ption. ( The I J appears t o h a ve misspoken. More than

one CI MT w o u ld have been enoug h to render B a llinasL ucero inelig ible for the petty offense ex ception.)

B a lli n a s

- L ucero a

ppealed to the B I A. He arg ued, inter alia
, that he was “not g uilt y of the alleg ed conviction,” a nd that it was “a misunderstanding

. ” He further contended that all the charg e s came from a “sing le scheme of conduct” a t his workplace, which he arg ued made him elig i b l e for the petty offense ex ception, a

n d thus elig ible f

or cancellation o f

r e m o v a l. S

ee 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering noncitiz ens convicted of two or more CI MTs, “not arising out of a sing le scheme of criminal misconduct,” d eportable); see also id. § 1229b(b)(1)(C) (rendering non-lawful p ermanent residents inelig ible for c a n cellation of r emoval if convicted under an offense described in § 1227(a)(2)).

The B I A dism i s s e d h is appeal o n September 12, 2012. The B I A found that B allinas-L ucero had been convicted on multiple counts of petty theft under §§ 484(a) a nd 488 of the California Penal Code. The B I A held that the th e f t s were CI MTs; that the petty o ffens e e x ce p tion did not apply ; a nd that the convictions rendered B allinas-L ucero stat utorily inelig ible f

or cancellation o f removal. The B I A also dismissed his appeal a s to his asy lum, withholding
, and CAT claims.B A L L I N A S -L U C E R

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C. Post-Conviction Relief

W h i le h is appeal to the B I A was pending
, B allin a s

L ucero moved in the Sup e r i or Court to withdraw his g uilty pleas and set aside his convictions. He broug ht his motion, throug h c ounsel, pursuant to California Penal Code § 1018. Section 1018 prov i d e s t hat “in c ase of a defendant w ho appeared w ithout counsel at the time of the plea the court shall, for a g ood cause shown, permit the plea o f g uilty to be withdrawn and a plea of not g uilty substituted” if the motion is timely

. Cal. Penal Code § 1018. I n his motio n , B a llinasL u cero arg ued that h e h ad “g ood cause” to withdraw h i s gu ilty pleas because they were entered due to “an overreaching of [ his] free and clear judg ment” caused by his lack of a t torney , his lack of information about the charg es, and his custodial status.

B a llinas-L ucero w rote in a Memorandum of Points a nd Authorities in support of his motion that he made his first a nd only a ppearance in the Superior Court two d a y s a f ter his
arrest. He had been c onfined in the c o u n t y j ail since his
arrest. W h ile in jail, he h ad b e e n “ a f r aid for his personal safety due to the larg e n u m b e r of other seeming ly sophisticated and pote ntially v iolent inmates.” Once in the courtroom, h e was “ s c ared, ig norant of his leg al rig hts, a nd did not have a working understanding o f the E n gl i sh being used by the particip a n t s .” He did not understand his “Advisement of Rig hts form” e ven after it was translated into Spanish. B allinas-L

u cero wrote that he had no “concept” o f what it meant to b e provided with a lawy er “who would work dilig e ntly for him a

n d ex p lore all p ossible defenses on his behalf.”B A L L I N A S -L U C E R

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B a llina s -L

ucero w rote, further, that the Superior Court judg e had told him that “if he ple a d e d g uilty rig ht a way he would be g iven cr e d i t f or time served and be released.” “W ithin the span of a v e r y f e w minutes,” he had pleaded
g uilty without having read the police reports or consulting with an a ttorney

. He wrote that he did not “underst a n d t h at

as soon as he pleaded g uilty h is fate was sealed not only with the courts but w ith immig r ation.” Citing § 1018, B a llinasL ucero arg ued that the court should construe his motion to withdraw liberally

in order to promote justice.

The District Attorney d id not oppose B a llinas-L ucero’s motion to withdraw hi s g u i lty pleas. The Superior Court
g ranted B allinas- L u ce ro’s motion on J une 29, 2012. The
court v acated his six convictions and p rior sentence; entered

a plea of not g uilty on B all inas-L u cero’s behalf as to all six counts; ordered that arrang ements be made to transfer B allinas-L

ucero from DHS custody to the custody of the Orang e County Sheriff; and set the mat t er f or a pre-trial hearing on the now-pending charg es.

On J uly 24, 2012, B allinas-L ucero pleaded g uilty to o ne count of violating California Penal Code § 368(d), theft from

an elder adult. Upon a m o t ion by the District Attorney
, the
court dismissed the charg es o n the remaining f i ve counts. Unlike when h e h ad pleaded g uilty to a ll six charg es, B allinas-L

ucero was represented b y counsel. The c ourt recited that it had advised B allinas-L ucero of the immig r ation
consequences of his plea, and that it found a factual basis for his g uilty plea. The court sentenced B a llinas-L ucero to thirty day s in jail on the one c o u nt of conviction, three y ears informal p robation, and r estitution. The c o u rt credited him with time served.B A L L I N A S -L U C E R

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B a l l i n a s

- L

ucero’s Memorandum o f P o i n t s a n d A u t h o r i t i e s in support of his motion to withdraw his plea, and the minutes of the Superior Court proceeding s, are the only d o cuments in the record r elevant to the c ourt’s g r anting of B a l l i n asL u cero’s motion to withdraw h is g uilty pleas. B allin a s

L ucero submitted the Orang e County Superior Court’s Notice of Availability of Court Reporting Services
, wh i c h indicates that court r eporters w ere g enerally not availa b l e at misdemean o r a

r r a i g n m e n t s a n d m i s d emeanor post-conviction hearing s.

D. Reopened I mmig ration Proceeding s

After th e Superior Court vacated his six misdemeanor convictions, and after he p l e a d ed g uilty to one count o f misdemeanor theft, B allinas-L u cero moved to r eopen his immig ration proceeding s. He arg u e d t h a t with only o ne conviction for misdemeanor theft, he w a s now statutorily elig ible for cancellation of removal. T h e B I A g ranted his motion to reopen and remanded his case to the I J

.

On remand, B al l inas-L

ucero appeared before a different I J

. T he I J e mphasiz ed to B allinas- L u c e r o ’s attorney s that they would nee d to provide evidence showing that his convictions w ere vacated “ on the m e ri t s” and “not pursuant to a r ehabilitative statute” for the vacaturs to be effective for immig ration purposes. T he I J c ontinued his merits h earing several times so that B allinas-L ucero could provide evidence of the Superior Court’s rationale f or vacating his convictions. B allinas-L

ucero’s attorney s introduced the Memorandum of Poi n t s a nd Authorities that had b een submitted to the Superior Court in support of his withdrawal motion, and the Superior Court minutes showing that court’s vacatur of the six convictions. They informed the I J that a transcript o fB A L L I N A S -L U C E R

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B allinas-L

ucero’s post-convic t i on hearing had not been made, and that the court had n ot issued a wr itten ruling

ex p laining its reasons for g ranting B allinas-L ucero’s motion. B allinas-L

ucero arg ued, base d on the available record, that h is convictions were vacated for the reasons provided in h i s Memorandum of Points and Authorities and specified in the
tex t of the statute, California Penal Code § 1018, under which the motion had been made and g ranted.

The I J d enied B allinas-L ucero’s a

pplication for cancellation of removal. The I J held that B all i n a s

- L ucero “remains c onvicted o f offenses which d isqualify him from elig ibility f

or n o n -[ lawful permanent resident] c ancellation and will a g ain pretermit his ap p l i cation for relief.” The I J
wrote that “respondent bears the burden of proving tha t his conviction was vacated on the merits.” The I J held that B allinas-L

ucero had failed to carry his burden: “I ndeed, the evidence submitted in this case shows t h at respondent’s conviction w a s vacated for ameliorative or equitable reasons.” The I J made an a lternative finding that even if five of his convictions were vacated “on t he merits,” B a llinasL ucero would still be inelig ible f o r cancellation because o f his remaining c onviction u nder California Penal Code § 368(d).

B a llinas-L ucero a

p p ealed to the B I A. He a r g ued in his brief that: (1) the g overnment bore the burden o f proving that his convictions were vacated for rehabilitative reasons a nd therefore remained effective f or immig ration purposes, a nd (2) the I J erred in finding that there w a s n o e vidence of the substantive reasons the court vacated his convictions.

The B I A dismissed B a llinas-L ucero’s a p p eal on November 13, 2017. The B I A h eld that “ [ t] he respondent hasB A L L I N A S -L U C E R

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the b urden of demonstrating h is elig ibility for cancellation o f removal,” a

nd that “the respondent b e a r s the b urden o f establi s hing that his convictions were v a cated on the merits and not for equitable or rehabilitative reasons or to spare the respondent from immig ration consequences.” T h e B I A concluded:

I n the absence of any statement by the cou r t reg arding the r easons for permitting the withdrawal o f the respondent’s g uilty plea, the record is inconclusive o n the issue of whether the vacatur of the respondent’ s c onvictions

was on the merits or w as for rehabilitative o r equitable reasons. Therefore, the respond e n t has not met his bur d e n of establishing his elig ibility for cancellation of removal.

The B I A’s decision did not address the alternative g round on

w h i c h the I J d enied B allinas-L u cero’s application for cancellation of removal.

B a llinas-L ucer o timely petitioned for review. W e have jurisdiction under 8 U.S.C. § 1252(a) to review the B I A ’s final order of removal.

I I . Standard of Review

W h ere, as here, “the B I A conducts its own review of the evidence and law, rather than adopting the I J ’s decision, our review is limited to the B I A’s decisio n , ex cept to the ex tent the I J ’s opinion is e x pressly adopted.” Guerra v. Barr
, 974 F .3d 9 09, 911 (9th Cir. 2020) ( quoting Rodriguez v

. Holder
, 683 F .3d 1164, 1169 ( 9th Cir. 2012)). W e review de

novo the B I A’s determination of questions of law. Bringas-B A L L I N A S -L U C E R

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R odriguez v. Sessions
, 850 F .3d 1 0 51, 1059 (9th Cir. 2017 ) (en banc). W e review the ag ency ’s factual determinations for substantial evide n c e

. Id. We must uphold the ag e ncy ’s factual f inding s unless t he record compels a contrary conclusion. 8 U .S.C. § 1 25 2 ( b ) ( 4)(B ); Garcia-Milian v

. Holder
, 755 F .3d 1026, 1 031 ( 9th Cir. 2 014). “I f we conclude that the B I A’s decision cannot be sustained upon its reasoning
, we must remand to allow the a g ency to d ecide any issues remaining in the case.” Sanchez R osales v. Barr
, 980 F .3d 7 16, 719 (9th Cir. 2020) (quoting Andia v. Ashcroft
, 359 F .3d 1181, 1184 (9th Cir. 2004) (per curiam)).

I I I

. Discussion

A. Vacated Convictions in the I mmig ration Contex t

Noncitiz e ns residing in the United States face sig nificant immig ration consequences as a result of a criminal conviction in state or federal court. Criminal convictions bar noncitiz ens present unlawfully in the U nited State s f r om most f

o rms o f discretionary relief from deportation, including asy lum, withholding of removal, and, as relevant here, c ancellation o f

r e m o v a l

. S e e 8 U

. S

. C

. § § 1 1 5 8 ( b ) ( 2 ) ( A ) ( i i )
, 1231(b)(3)(B )(ii), 1229b(b)(1)(C). Criminal convictions for

ce r t ain serious offenses also render lawful p ermanent resid en ts “removable” and inelig ible for discretionary relief from deportation. S

e e 8 U.S.C. §§ 1 227(a)(2), 1229b(a)(3); Padilla v. K

e n tucky
, 559 U.S. 356, 363–64 (2010) (“Under contemporary law, if a noncitiz en has committed a r emovable of f e n s e

. . . , h is removal is practically inevitable but for the possible ex e rcise of limited remnants of equitable discretion

v e s t e d in the A ttorney General to cancel removal f o r noncitz ens convicted of particular classes of offenses.”).B A L L I N A S -L U C E R

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Convictions subsequently vaca ted b y a state or federal

c ourt may remain valid for immig ration purposes in certa i n circumstances. See Nunez-Reyes v. H older
, 646 F. 3d 684, 68 8

– 8 9 (9th Cir. 2011) (en banc). I n the foundational c ase, In re Pickering
, 23 I & N Dec. 621 (B I A 2003), rev’d o n other grounds
, Pickering v. Gonzales
, 465 F

. 3d 263 (6th Cir. 2006), the B I A ex plained:

[ I ] f a court w ith j u risdiction vacates a conviction based on a defect in the underly ing criminal procee ding s, the respondent no long er has a “conviction” within the meaning of section 101(a)(48)(A) [ of the I NA]

. I f, however, a c ourt va cates a conviction for

reasons unr elated to the merits of the

u n d e r l yi n g c r i m i n a l p r o c e e d i n g s , t h e

r e s p o n d e n t r e m a i n s “ c o n v i c t e d ” f o r immig ration purposes.

Id. at 624; see also In re Thomas & In re Thompson
, 27 I & N Dec. 674, 674 (A.G. 2 019) (affirming In re Pi c k e r i n g a nd

ex tending its test to “state-court orders t h a t modify
, clarify
, or otherwise alter a c riminal alien’s sentence”). W hen, a fter reviewing the state co urt r ecord, it is determined that “the quashing of the convicti o n w a s n ot based on a defect in the conviction or in the p ro c e eding s underlying the conviction, but instead a

ppears to ha v e been entered solely for im m ig r ation purposes,” the conviction remains valid in immig ration proceeding s. In re Pickering
, 23 I &N D e c

. at 625. That is, if a conviction is v acated “sole l y f o r immig ration purposes,” or for other reasons “unrelated to the merits of the underlying cr iminal proceeding s,” it remains valid f or immig ration purposes. Id. at 624–25. However, a nd relevant to this case, a conviction vacated “on the basis of aB A L L I N A S -L U C E R

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defect in the underlying criminal pro c eeding s” is no long er valid for immig ration purposes. I d. at 625.

I n the y ears since I

n r e P i ckering was decided, w e have applied its holding repeatedly . W e have held that a criminal conviction v acated by a state court because of a “procedural

or substantive defect” is not a “conviction” fo r i m mig r ation
purposes. Nath v. Gonzales
, 467 F .3d 1185, 1189 (9th Cir. 2006) (qu o t i ng In re Pickering
, 23 I & N Dec. at 624). “A vacated conviction can serve a s t h e basis of removal only if the conviction w as vacated for reasons ‘unrelated to the merits of the underlyi n g c r iminal proceeding s,’ that is, for equitable, rehabi l itation, o r immig ration hardship reasons.” Id. at 1188–89 (quoting In re Pickering
, 2 3 I & N Dec. at 624); see also Cardoso-Tlaseca v. Gonzales
, 4 60 F .3d 1102, 1107 n.3 (9th Cir. 2006); Prado v. Barr
, 949 F

. 3 d 4 3 8
, 4 41 (9th Cir. 2020); P oblete Mendoza v. H older
, 606 F .3d 1 137, 1141 (9th Cir. 2010). A vacated convicti o n remains valid for immig ration purposes wh e n it is v acated “ solely for

r ehabilitative reasons or reasons related to [ the petitioner’s] immig ration status.” Nath
, 467 F .3d at 1 1 8 9 ( emphasis in orig inal) (quoting Cardoso-Tlaseca
, 460 F .3d a t 1107 n .3); accord Reyes-Torres v. Holder
, 645 F .3d 1073, 1077 (9th Cir. 2011) (same).

B . B urden of Proof in Cancellation-of-Removal Cases

The B I A held that, because a noncitiz en “has the burden of demonstrating his elig ibility for cancellation of removal,” B allinas-L

ucero h a d the b urden o f demonstrating that his convic tions w ere v acated due to a substantive or procedural defect, and not for equitable or rehabilitative reasons, and that those c onvictions therefo r e no long e r posed a bar to his application for cancellation of removal. T h e SupremeB A L L I N A S -L U C E R

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C o u r t’s recent decision in another cancellation-of-remova l
case, Pereida v. W

ilkinson
, 141 S. Ct. 754 ( 2021), persuades

us that the B I A was correct. I n Pereida
, the petitioner soug ht
to prove h is elig ibility for cancella t i o n of removal, despite having been c onvicted of a p o tentially disqualify ing CI MT offense—“attempted criminal impersonation.” Id. at 759. The statute under wh i c h P ereida stood c onvicted was arg uably divisible ( it included several CI MT sub-sections a nd

one non-CI MT subsection), and the question presented was whether, g iv e n a m b ig uity in the state court record about which subsection Pereida was convicted of violating
, he h ad been convicted of a disqualify ing offense. Id. at 759–60. The Court h eld that because Pereida bore the burd e n o f proving his elig ibility for cancellation, in the face of a mbig uous state court records, “any li n g ering uncertainty about whether Mr. Pereida stands convicted o f a crime of m o r a l turpitude would appear e noug h to defeat his application for relief.” Id. at 761.

I n reachin g t his conclusion, the Court noted that the burden of proving the p resence (or a bsence) of a q ualify ing criminal conviction “flips” from the g overnment when it seeks to prove removability to the a pplicant when relief from removability is soug ht

. Id. (comparing 8 U .S.C. §§ 1229a(c)(3), 1227(a)(2)(A)(i) wi t h § 1229a(c)(4)). The Court ex plained, “These statutory f e a t ures show that Cong r ess knows how to assig n the g o vernment the burden o f proving a disqualify ing conviction. And Cong ress’s decision
to do so in some proceeding s, b u t n o t in proceeding s o n an alien’s application for r elief, reflects its choice that these different processes warrant different treatment.” Id. Consistent with the Court’s reasoning in Pereida
, w e h o ld that a pplicants for cancellation of removal bear the burden o f proving not only that their convictions h ave been vacated, butB A L L I N A S -L U C E R

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also that the vacated convictions are n ot valid for immig r ation
purposes.

W e turn nex t to the question of w hether B allinas-L ucero carried this burden.

C. Evidence of Effective Vacatur in this Case

I n evaluating the c r iminal court record to assess the

reasons unde r

pinning a court’s order of vacatur, the B I A considers three ty

pes of evidence: ( 1) the law under w hich the
court issued its o rder, (2) the lang uag e o f t h e court’s order itself, and (3) the r easons provide d by the noncitiz en in the request for post-conviction relief. In re Pickering
, 23 I & N Dec. a t 625; see also In r e Thomas
, 2 7 I & N Dec. a t 685. B allinas-L

ucero proffered two pieces o f evidence supporting his arg u ment that the Orang e County Superior Court vacated his misdemeanor convictions due to leg al defects in h is initial
g uilty pleas: ( 1) the statute u nder wh ich the vacatur was g ranted, and (2) his Memorandum of Points and Authorities in support of his motion to w ithdraw h i s gu i l ty pleas. The B I A considered B a llinas-L ucero’s evi dence and held that it

was “inconclusive” as to wh e t h e r the state court vacated his convictions “on the merits.” W e disag ree.

The B I A a cknowledg ed that B allinas-L ucero’s motion to withdraw his g uilt y p lea was b roug h t pursuant to California Penal Code § 1018. However, the B I A did not conduct any

a naly sis of the statute to determine whether it p rovides f o r vacatur for substantive or p r ocedural reasons or for rehabilitative or equitable reasons. The statute provides:

On application of the defendant at any time before judg ment o r within six months after anB A L L I N A S -L U C E R

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order g ranting probat i o n is made if entry o f judg ment is suspended, the court may , and in

case o f a defendant who app e a red without counsel at the time of the plea the court shall, for a go od cause shown, permit the plea o f
g uilty to be withdrawn a

n d a plea of not g uilty substituted.

. . . This section shall be liberally

co n strued to effect these objects and to promote justice.

Cal. Penal Code § 1018.

S e ction 1018 requires California courts to permit criminal defendants to withdraw a g uilty ple a if they were unrepresented by c ounsel at the time of the i r p l ea, upon a showing of “g ood cause.” Id. The California Supreme Court has held that “g ood cause” for wi t h d ra w i ng a g uilty plea under § 1018 means “[ m] istake, ig norance , o r any other factor overcoming the ex ercise of free j udg ment,” and that

“ go od cause” must b e proven with “clear and c onvincing evidence.” People v. Patterson
, 391 P

. 3d 1169, 1175 (Cal. 2017) (quoting P e o

p le v. Cruz
, 526 P.2d 250, 252 (Cal. 1974)). Withdrawal m a y be based on the court’s or the counsel’s fa i l u r e to advise a criminal defendant o f the
consequences o f a g uilty p lea. Id. at 725 (“B efore the trial
court a ccepts a defendant’s g uilty or no contest plea, the court must ad v ise the defendant of his or her max imum possible
sentence

. . . . F ailure to do so may be g ood cause to allow the defendant t o withdraw the p lea.”); Patterson
, 391 P.3d
at 1179 (holding that counsel’s failure to advise defendant o f the i m m ig r ation consequences o f his g uilty plea could

con s t itute g o od cause for withdrawal, even after p etitioner received a ge n e ral advisement from the court). “The defenda n t m ay not withdraw a plea because the defendantB A L L I N A S -L U C E R

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has chang ed his or h e r m i n d

. ” People v. A rcher
, 178 Cal. Rptr. 3d 722, 730 (Cal. Ct. App. 2014).

Th e g rounds for allowing withdrawal of a g uilty plea und e r § 1018 are substantive and procedural defects in the und e r ly ing proceeding

. Section 1018 is readily disting uishable from other state statutes we ha ve previously found to allow vacatur for equitable or rehabilitative reasons. See, e.g. , P rado
, 949 F .3d at 440–42 ( h olding that California’s Con t r o l
, Reg ulate, and Tax Adult Use o f Marijuana Act had reclassified Prado’s conviction “for p olicy

reasons of rehabilitation”); Poblete Mendoza
, 606 F .3d
at 1142 (hol d i n g t hat any vacatur under Ariz ona Revised Statutes § 13-907 was “for rehabilitative purposes”).

The B I A a lso considered the Memorandum o f Points a nd Authorities B allinas-L

ucero submitted to the Superior Court in support of his motion to w ithdraw his g uil t y p l ea s

. The B I A n oted that B allinas-L ucero’s Memorandum “asserts that the respondent felt pressured, did n ot understand his options, did not d i s c u s s his case with an attorney , and was not adequately advised of the immig ration con s equences of his plea.” The B I A, however, d id not evaluate B a llinas-L ucero’s motion as ev i d en c e of the g rounds for the state-court’s decision, as I

n r e Pickering instructs it to do. 23 I & N Dec.
at 62 5

. A n

y r easonable adjudicator reading B a llinas-L ucero’s Memorandum in support of his motion would be r equired to f i n d t h a t t h e f

a c t u a l g r o u n d s a s s e r t e d p e r t ai n e d overwhelming ly

to substantive and procedural defects in his pleas, as specified in § 1018.

The o nly men t ion of immig ration h ardship in B a llinasL ucero’s M e m o randum related to a leg al defect in the proceeding

— that he did not sufficiently unde r s t and theB A L L I N A S -L U C E R

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immig ration consequences of his plea. See Patterso n , 391 P.3d at 1 176. The only equitable arg

ument advanced in his Memorandum was that it be “liberally co n strued” to promote justice, which drew directly from the lang uag e of the
statute. Cal

. Penal Code § 1018. B a llinas-L ucero’s Memoran d um made no reference to any post-conviction rehabilitative events in B allinas-L ucero’s life
, a nd d id not discuss his immig r ation hardships, ex cept t o s a y that he did
not understan d
, at the time of his plea, “that his fate was sealed” with immig ration upon its acceptance by the court.

B e cause B allinas-L

ucero’s motion to withdraw his g uilty pleas was unopposed b y the state, and because t he Superior Court g ra n t e d his motion w ithout any ex planation, the
contents o f his Memora n d u m i n support of the motion a re critical to an understanding o f the state co u r t ’s rationale for vacating h is convictions. Despite the clarity o f B a llinasL ucero’s Memorandum, and of the criteria in § 1018, the B I A found the “absence of any statement b y t h e court reg arding the reasons for permitting the withdrawal of the respondent’s
g uilty plea” to be dispositive. T h is was err o r

. As the Attorney General stated in I n r e Thomas
, adjudicators apply ing the “ Pickering test

. . . frequently determine whether

a vacatur is v alid for i m m i gration purposes by assessing the
tex t of the order of v acatur itself or the a l i e n ’ s motion requesting the vacatur .” 2 7 I & N Dec. at 6 8 5 (emphasis added).

The record before the B I A compels a conclusion, contrary to that of the B I A
, that the Superior C o u r t vacated B a llinasL uc er o ’s six misdemeanor convictions because o f leg al defects in h is pleas. B e cause the B I A’s finding reg a rding the Superior Court’s dismissal of B allinas-L ucero’s convictions

was not supported b y substantial evidence, we g rant theB A L L I N A S -L U C E R

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petition for review. W e rema n d t o t he B I A for f urther
p r o ceeding s to d etermine in the first instance (1) wheth e r B allinas-L

ucero’s r e maining conviction under Cal. Penal Code § 368(d) qualifies a s a CI MT, and if so, whether the petty offense e x ception under 8 U.S.C. § 1182(a)(2)(A)(ii)(I I ) applies to it; and (2) whether B allinas-L ucero satis f

ies the oth er statutory r equirements for c ancellation of removal under 8 U.S.C. § 1229b(b)(1).

Conclusion

W e hold that B allinas-L

ucero bore the burden of proving
t h a t h is v acated convictions did not remain valid for i mmig ration p urposes, and that he carried that burden. T h e record in this case compels the finding that B a llinas-L ucero’s convictions w ere vacated because o f leg al defects, and not solely immig ration purposes, or for rehabilitative or equitable

reasons. W e therefore g rant the pet ition for review a nd remand the case to the B I A for further proceeding s consistent with this opinion.

The petition for review is G RANT E D a n d the case is REMANDED for further proceeding s cons i s t e nt w ith this opinion.