FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS MAXIMINO BALLINAS-LUCERO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

No. 17-73260

Agency No.

A200-154-807

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 15, 2022

San Francisco, California

Filed August 15, 2022

Before: William A. Fletcher, Ronald M. Gould, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge W. Fletcher
2 BALLINAS-LUCERO V. GARLAND

SUMMARY*

Immigration

Granting Luis Maximino Ballinas-Lucero’s petition for

review of a decision of the Board of Immigration Appeals,

and remanding, the panel held that: 1) an applicant for

cancellation of removal bears the burden of proving that a

conviction was vacated because of a substantive or procedural

defect in the criminal proceedings, and not solely for

immigration purposes or for rehabilitative or equitable

reasons; and 2) Ballinas-Lucero carried this burden of proof. 

In 2012, Ballinas-Lucero pleaded guilty, without counsel,

to six misdemeanor theft charges. The BIA later concluded

that his petty theft convictions were crimes involving moral

turpitude that rendered him ineligible for cancellation of

removal. Ballinas-Lucero moved the Superior Court, through

counsel and pursuant to Cal. Penal Code § 1018, to withdraw

his guilty pleas and set aside his convictions. In his

Memorandum of Points and Authorities, he wrote that he was

afraid for his safety in jail, ignorant of his rights in court, and

did not have a working knowledge of English. He wrote,

further, that the Superior Court judge told him that if he

pleaded right away he would be given credit for time served

and released. Within a few minutes, he had pleaded guilty

without having read the police reports or consulting an

attorney. He wrote that he did not understand that as soon as

he pleaded guilty his fate was sealed not only with the courts

but with immigration.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BALLINAS-LUCERO V. GARLAND 3

The Superior Court granted his motion, and BallinasLucero pleaded guilty to violating Cal. Penal Code § 368(d),

theft from an elder adult. Ballinas-Lucero moved to reopen

his immigration proceedings. The BIA granted the motion,

but ultimately decided that Ballinas-Lucero failed to meet his

burden of proof as to the nature of the vacatur of his

convictions.

The panel explained that vacated convictions remain valid

for immigration purposes if they are vacated solely for

reasons unrelated to the merits of the underlying criminal

proceedings, that is, equitable, rehabilitative, or immigration

reasons. However, a conviction vacated on the basis of a

defect in the underlying criminal proceedings is no longer

valid for immigration purposes.

The panel held that applicants for cancellation of removal

bear the burden of proving that their vacated convictions are

not valid for immigration purposes. The panel relied on

Pereida v. Wilkinson, 141 S. Ct. 754 (2021), where the

Supreme Court held that because Pereida bore the burden of

proving his eligibility for cancellation, in the face of

ambiguous state court records, any uncertainty about

whether he stood convicted of a disqualifying crime was

enough to defeat his application for relief. 

Next, the panel concluded that Ballinas-Lucero carried

that burden, explaining that the record compelled the

conclusion that his convictions were vacated due to legal

defects in his pleas. The panel observed that, under In re

Pickering, 23 I. & N. Dec. 621 (BIA 2003), the BIA

considers: (1) the law under which the court issued its order,

(2) the language of the court’s order, and (3) the reasons

provided by the noncitizen in the request for post-conviction
4 BALLINAS-LUCERO V. GARLAND

relief. The BIA concluded that Ballinas-Lucero’s evidence

(the statute under which vacatur was granted, Cal. Penal Code

§ 1018, and his Memorandum of Points and Authorities) was

“inconclusive” as to whether his convictions were vacated

“on the merits.”

The panel disagreed. First, the panel concluded that the

grounds for allowing withdrawal of a guilty plea under Cal.

Penal Code § 1018 are substantive and procedural defects in

the underlying proceeding. Second, the panel concluded that

any reasonable adjudicator reading Ballinas-Lucero’s

Memorandum would be required to find that the grounds

asserted pertained overwhelmingly to substantive and

procedural defects. Third, the panel concluded that the BIA

erred, under In re Pickering, by finding dispositive the

absence of any statement by the court regarding the reasons

for permitting the withdrawal of the guilty plea.

The panel remanded to the BIA to determine in the first

instance (1) whether Ballinas-Lucero’s remaining conviction

under Cal. Penal Code § 368(d) qualifies as a CIMT, and if

so, whether the petty offense exception under 8 U.S.C.

§ 1182(a)(2)(A)(ii)(II) applies to it; and (2) whether BallinasLucero satisfies the other statutory requirements for

cancellation of removal.
BALLINAS-LUCERO V. GARLAND 5

COUNSEL

Richard Lucero (argued), Law Office of Richard Lucero,

Los Angeles, California; Rosana Kit Wai Cheung, Law

Offices of Rosana Kit Wai Cheung, Los Angeles, California;

for Petitioner.

Edward E. Wiggers (argued), Senior Litigation Counsel;

Mary Jane Candaux, Assistant Director; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

OPINION

W. FLETCHER, Circuit Judge:

Luis Maximino Ballinas-Lucero petitions for review of

the decision of the Board of Immigration Appeals (“BIA”)

dismissing his appeal from an order of an Immigration

Judge (“IJ”) denying his application for cancellation of

removal. The BIA held that Ballinas-Lucero was statutorily

barred from cancellation of removal under 8 U.S.C.

§ 1229b(b)(1)(C) because, in the view of the BIA, his six

misdemeanor convictions for pettytheftremained convictions

for immigration purposes even after they had been vacated by

a California Superior Court.

We hold that under Pereida v. Wilkinson, 141 S. Ct. 754

(2021), an applicant for cancellation of removal bears the

burden of proving that a state-court conviction was vacated

because of a substantive or procedural defect in the criminal

proceedings, and not solely for immigration purposes or for

rehabilitative or equitable reasons. We hold, further, that
6 BALLINAS-LUCERO V. GARLAND

Ballinas-Lucero carried this burden of proof. The record

compels a finding that the Superior Court vacated his six

misdemeanor convictions because of substantive or

procedural defects in the criminal proceedings, and did not do

so solely for immigration purposes or for rehabilitative or

equitable reasons. After vacatur of his six misdemeanor

convictions, Ballinas-Lucero was convicted of a single

misdemeanor that may qualify for the petty offense exception

under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), which would render

him statutorily eligible for cancellation of removal.

We therefore grant the petition for review and remand the

case to the BIA so that it may decide in the first instance

whether Ballinas-Lucero’s single petty theft conviction is a

conviction that falls within the petty offense exception under

8 U.S.C. § 1182(a)(2)(A)(ii)(II), and whether he satisfies the

other statutory criteria for cancellation of removal under

8 U.S.C. § 1229b(b)(1).

I. Background

A. Factual Background

Ballinas-Lucero was born in Puebla, Mexico, in 1969. He

entered the United States without inspection in 1988 and has

resided continuously in the United States since 1996. 

Ballinas-Lucero is married and has three children, two of

whom are U.S. citizens. His parents are lawful permanent

residents of the United States. Prior to being detained by the

U.S. Department of Homeland Security (“DHS”), BallinasLucero lived in Tustin, California, and worked as a manager

at a Burger King restaurant.
BALLINAS-LUCERO V. GARLAND 7

On January 4, 2012, Ballinas-Lucero was arrested at his

workplace. He was arraigned in the Orange County Superior

Court two days later on six misdemeanor charges, three for

“Theft from elder adult” under California Penal Code

§ 368(d) and three for “Theft by employee – under $400”

under California Penal Code §§ 484(a), 488, 508. The

charges stemmed from three disputes regarding change given

to a disabled customer and her caregiver on December 8,

2011, December 16, 2011, and January 4, 2012.

Ballinas-Lucero had never been arrested before. Without

representation by an attorney, he pleaded guilty to all six

charges the same day he was arraigned. The court minutes

from his January 6, 2012, arraignment state that a Spanish

interpreter was present and that Ballinas-Lucero was

“formally arraigned and informed of the charges.” The

minutes state that Ballinas-Lucero “understands [his] rights

as explained,” and “understands [the] consequences of the

plea.”

The Superior Court sentenced Ballinas-Lucero to six days

in county jail and three years of informal probation on the

theft from an elder adult charges. It stayed his sentence on

the theft by employee charges. Ballinas-Lucero was credited

with time served and released the same day.

B. Initial Immigration Proceedings

Several days after his release from jail, DHS detained

Ballinas-Lucero and issued a Notice to Appear in removal

proceedings. DHS charged him with violating

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United

States without being admitted or paroled.
8 BALLINAS-LUCERO V. GARLAND

Ballinas-Lucero conceded removability during a master

calendar hearing on January 31, 2012. Through counsel, he

filed an I-589 application for asylum, withholding of removal,

and relief from removal under the Convention Against

Torture (“CAT”). He also applied for cancellation of removal

and adjustment of status under 8 U.S.C. § 1229b(b). To be

eligible for cancellation of removal, an applicant generally

must demonstrate, inter alia, that he or she has not been

convicted of an offense under 8 U.S.C. § 1182(a)(2), which

renders inadmissable applicants convicted of certain crimes,

including crimes involving moral turpitude (“CIMTs”) or

crimesinvolving controlled substances. Id. § 1229b(b)(1)(C). 

Pettytheft in violation of certain statutes, includingCalifornia

Penal Code §§ 484, 488, is a CIMT. Castillo-Cruz v. Holder,

581 F.3d 1154, 1159 (9th Cir. 2009) (collecting cases); see

also Silva v. Garland, 993 F.3d 705, 716–17 (9th Cir. 2021)

(casting doubt on the reasoning of our prior § 484 CIMT

holdings, but concluding they remained binding). However,

a noncitizen with only one conviction for a CIMT crime is

not inadmissible if the crime qualifies under the “petty

offense exception.” Castillo-Cruz, 581 F.3d at 1157 (citing

8 U.S.C. § 1182(a)(2)(A)(ii)(II)). A CIMT qualifies under

the petty offense exception if “the maximum penalty possible

for the crime of which the alien was convicted . . . did not

exceed imprisonment for one year and . . . the alien was not

sentenced to a term of imprisonment in excess 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)(II)).

Ballinas-Lucero appeared for his first merits hearing

before an IJ on April 9, 2012. He testified through an

interpreter. On direct examination, Ballinas-Lucero briefly

testified about his fear of returning to Mexico. On crossexamination, the government attorney questioned him about
BALLINAS-LUCERO V. GARLAND 9

his theft convictions. The attorney asked, “Who did you steal

from?” Ballinas-Lucero responded that he was “accused of

having taken the change from a customer.” He explained that

this customer, a woman, was not elderly, but “not doing, not

so well,” or, in the words of the government’s attorney, was

“mentally handicapped.”

The IJ also questioned Ballinas-Lucero. The IJ asked him

if he had pleaded guilty to the theft charges. Ballinas-Lucero

responded, “[I]t was the first time I ever gone to court and it

was in Orange and I really had no idea what to say, whether

to say yes or no.” He further testified about his lack of

experience in criminal court and his failure to understand the

charges against him:

[W]hen I went to court, they read me the

charges, but everything was codified. It was

all in codes, so nobody said to me specifically

that this is for this, or that is for that. And the

translator just said to me to say yes, simply

and uh-huh. After I was accepted, after I

accepted or agreed to the charges, the attorney

asked me what the charges had been and I

told, I told her or him, I, I don’t even know

what they really were, uh-huh. And, and I

was told by the attorney that they have to

explain them to me or read them to me and I

said I don’t know. This was the first time I’m

ever in court.

Ballinas-Lucero said that he did not have an attorney to

represent him. He had “only a translator.” When the IJ

pressed him as to why he did not ask for an attorney,

Ballinas-Lucero answered, “I’m sorry, perhaps this was my
10 BALLINAS-LUCERO V. GARLAND

ignorance because it was my first time in court. I really

didn’t know what I was supposed to do.”

The IJ asked Ballinas-Lucero about the circumstances

underlying the theft charges. Ballinas-Lucero explained that

he was arrested at his workplace, and that it was a caregiver

for the person whose change he was accused of taking who

“caught” him. He said the customer in question was a regular

at the Burger King. Ballinas-Lucero testified that he did not

steal from the customer, but instead that the customer was

confused about the price of her order, which had not been her

usual order.

The IJ concluded the hearing stating, “[U]nfortunately, I

cannot alter your conviction and it appears you pled guilty to

it. If you think you were wrongly convicted, your only option

would be to go back to that court and try to get it to correct,

it’s what, you believe is an error.” The IJ said that he

credited Ballinas-Lucero’s testimony as to his fears about

returning to Mexico but found that he was nevertheless

ineligible for asylum, withholding, and CAT protection. The

IJ offered him voluntary departure, but Ballinas-Lucero

refused to waive his right to appeal the IJ’s decision and

elected instead to appeal the IJ’s decision to the BIA.

In an oral decision, the IJ denied Ballinas-Lucero’s

applications for asylum, withholding, CAT protection, and

cancellation of removal. The IJ questioned the validity of

Ballinas-Lucero’s criminal convictions:

[T]he Court did ask how he committed this

offense and from what respondent said he did,

it did not appear he was guilty. Realizing he

was not represented, believing that he may
BALLINAS-LUCERO V. GARLAND 11

have, as he says, not understood since they

were all talking in code, there may have been

a miscarriage of justice here.

The IJ held that because the convictions nevertheless

“appear[] proper” Ballinas-Lucerowasstatutorilybarred from

cancellation of removal for having been convicted of “more

than two” CIMTs and was not eligible for the petty theft

exception. (The IJ appears to have misspoken. More than

one CIMT would have been enough to render BallinasLucero ineligible for the petty offense exception.)

Ballinas-Lucero appealed to the BIA. He argued, inter

alia, that he was “not guilty of the alleged conviction,” and

that it was “a misunderstanding.” He further contended that

all the charges came from a “single scheme of conduct” at his

workplace, which he argued made him eligible for the petty

offense exception, and thus eligible for cancellation of

removal. See 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering

noncitizens convicted of two or more CIMTs, “not arising out

of a single scheme of criminal misconduct,” deportable); see

also id. § 1229b(b)(1)(C) (rendering non-lawful permanent

residents ineligible for cancellation of removal if convicted

under an offense described in § 1227(a)(2)).

The BIA dismissed his appeal on September 12, 2012. 

The BIA found that Ballinas-Lucero had been convicted on

multiple counts of petty theft under §§ 484(a) and 488 of the

California Penal Code. The BIA held that the thefts were

CIMTs; that the petty offense exception did not apply; and

that the convictions rendered Ballinas-Lucero statutorily

ineligible for cancellation of removal. The BIA also

dismissed his appeal as to his asylum, withholding, and CAT

claims.
12 BALLINAS-LUCERO V. GARLAND

C. Post-Conviction Relief

While his appeal to the BIA was pending, BallinasLucero moved in the Superior Court to withdraw his guilty

pleas and set aside his convictions. He brought his motion,

through counsel, pursuant to California Penal Code § 1018.

Section 1018 provides that “in case of a defendant who

appeared without counsel at the time of the plea the court

shall, for a good cause shown, permit the plea of guilty to be

withdrawn and a plea of not guilty substituted” if the motion

is timely. Cal. Penal Code § 1018. In his motion, BallinasLucero argued that he had “good cause” to withdraw his

guilty pleas because they were entered due to “an

overreaching of [his] free and clear judgment” caused by his

lack of attorney, his lack of information about the charges,

and his custodial status.

Ballinas-Lucero wrote in a Memorandum of Points and

Authorities in support of his motion that he made his first and

only appearance in the Superior Court two days after his

arrest. He had been confined in the county jail since his

arrest. While in jail, he had been “afraid for his personal

safety due to the large number of other seemingly

sophisticated and potentially violent inmates.” Once in the

courtroom, he was “scared, ignorant of his legal rights, and

did not have a working understanding of the English being

used by the participants.” He did not understand his

“Advisement of Rights form” even after it was translated into

Spanish. Ballinas-Lucero wrote that he had no “concept” of

what it meant to be provided with a lawyer “who would work

diligently for him and explore all possible defenses on his

behalf.”
BALLINAS-LUCERO V. GARLAND 13

Ballinas-Lucero wrote, further, that the Superior Court

judge had told him that “if he pleaded guilty right away he

would be given credit for time served and be released.” 

“Within the span of a very few minutes,” he had pleaded

guilty without having read the police reports or consulting

with an attorney. He wrote that he did not “understand that

as soon as he pleaded guilty his fate was sealed not only with

the courts but with immigration.” Citing § 1018, BallinasLucero argued that the court should construe his motion to

withdraw liberally in order to promote justice.

The District Attorney did not oppose Ballinas-Lucero’s

motion to withdraw his guilty pleas. The Superior Court

granted Ballinas-Lucero’s motion on June 29, 2012. The

court vacated his six convictions and prior sentence; entered

a plea of not guilty on Ballinas-Lucero’s behalf as to all six

counts; ordered that arrangements be made to transfer

Ballinas-Lucero from DHS custody to the custody of the

Orange County Sheriff; and set the matter for a pre-trial

hearing on the now-pending charges.

On July 24, 2012, Ballinas-Lucero pleaded guilty to one

count of violating California Penal Code § 368(d), theft from

an elder adult. Upon a motion by the District Attorney, the

court dismissed the charges on the remaining five counts. 

Unlike when he had pleaded guilty to all six charges,

Ballinas-Lucero was represented by counsel. The court

recited that it had advised Ballinas-Lucero of the immigration

consequences of his plea, and that it found a factual basis for

his guilty plea. The court sentenced Ballinas-Lucero to thirty

days in jail on the one count of conviction, three years

informal probation, and restitution. The court credited him

with time served.
14 BALLINAS-LUCERO V. GARLAND

Ballinas-Lucero’s Memorandum ofPoints andAuthorities

in support of his motion to withdraw his plea, and the minutes

of the Superior Court proceedings, are the only documents in

the record relevant to the court’s granting of BallinasLucero’s motion to withdraw his guilty pleas. BallinasLucero submitted the Orange County Superior Court’s Notice

of Availability of Court Reporting Services, which indicates

that court reporters were generally not available at

misdemeanor arraignments andmisdemeanor post-conviction

hearings.

D. Reopened Immigration Proceedings

After the Superior Court vacated his six misdemeanor

convictions, and after he pleaded guilty to one count of

misdemeanor theft, Ballinas-Lucero moved to reopen his

immigration proceedings. He argued that with only one

conviction for misdemeanor theft, he was now statutorily

eligible for cancellation of removal. The BIA granted his

motion to reopen and remanded his case to the IJ.

On remand, Ballinas-Lucero appeared before a different

IJ. The IJ emphasized to Ballinas-Lucero’s attorneys that

they would need to provide evidence showing that his

convictions were vacated “on the merits” and “not pursuant

to a rehabilitative statute” for the vacaturs to be effective for

immigration purposes. The IJ continued his merits hearing

several times so that Ballinas-Lucero could provide evidence

of the Superior Court’s rationale for vacating his convictions. 

Ballinas-Lucero’s attorneys introduced the Memorandum of

Points and Authorities that had been 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 IJ that a transcript of
BALLINAS-LUCERO V. GARLAND 15

Ballinas-Lucero’s post-conviction hearing had not been

made, and that the court had not issued a written ruling

explaining its reasons for granting Ballinas-Lucero’s motion. 

Ballinas-Lucero argued, based on the available record, that

his convictions were vacated for the reasons provided in his

Memorandum of Points and Authorities and specified in the

text of the statute, California Penal Code § 1018, under which

the motion had been made and granted.

The IJ denied Ballinas-Lucero’s application for

cancellation of removal. The IJ held that Ballinas-Lucero

“remains convicted of offenses which disqualify him from

eligibility for non-[lawful permanent resident] cancellation

and will again pretermit his application for relief.” The IJ

wrote that “respondent bears the burden of proving that his

conviction was vacated on the merits.” The IJ held that

Ballinas-Lucero had failed to carry his burden: “Indeed, the

evidence submitted in this case shows that respondent’s

conviction was vacated for ameliorative or equitable

reasons.” The IJ made an alternative finding that even if five

of his convictions were vacated “on the merits,” BallinasLucero would still be ineligible for cancellation because of

his remaining conviction under California Penal Code

§ 368(d).

Ballinas-Lucero appealed to the BIA. He argued in his

brief that: (1) the government bore the burden of proving that

his convictions were vacated for rehabilitative reasons and

therefore remained effective for immigration purposes, and

(2) the IJ erred in finding that there was no evidence of the

substantive reasons the court vacated his convictions.

The BIA dismissed Ballinas-Lucero’s appeal on

November 13, 2017. The BIA held that “[t]he respondent has
16 BALLINAS-LUCERO V. GARLAND

the burden of demonstrating his eligibility for cancellation of

removal,” and that “the respondent bears the burden of

establishing that his convictions were vacated on the merits

and not for equitable or rehabilitative reasons or to spare the

respondent from immigration consequences.” The BIA

concluded:

In the absence of any statement by the court

regarding the reasons for permitting the

withdrawal of the respondent’s guilty plea, the

record is inconclusive on the issue of whether

the vacatur of the respondent’s convictions

was on the merits or was for rehabilitative or

equitable reasons. Therefore, the respondent

has not met his burden of establishing his

eligibility for cancellation of removal.

The BIA’s decision did not address the alternative ground on

which the IJ denied Ballinas-Lucero’s application for

cancellation of removal.

Ballinas-Lucero timely petitioned for review. We have

jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s

final order of removal.

II. Standard of Review

Where, as here, “the BIA conducts its own review of the

evidence and law, rather than adopting the IJ’s decision, our

review is limited to the BIA’s decision, except to the extent

the IJ’s opinion is expressly adopted.” Guerra v. Barr,

974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v.

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

novo the BIA’s determination of questions of law. Bringas-
BALLINAS-LUCERO V. GARLAND 17

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)

(en banc). We review the agency’s factual determinations for

substantial evidence. Id. We must uphold the agency’s

factual findings unless the record compels a contrary

conclusion. 8 U.S.C. § 1252(b)(4)(B); Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). “If we

conclude that the BIA’s decision cannot be sustained upon its

reasoning, we must remand to allow the agency to decide any

issues remaining in the case.” Sanchez Rosales v. Barr,

980 F.3d 716, 719 (9th Cir. 2020) (quoting Andia v. Ashcroft,

359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)).

III. Discussion

A. Vacated Convictions in the Immigration Context

Noncitizens residing in the United States face significant

immigration consequences as a result of a criminal conviction

in state or federal court. Criminal convictions bar noncitizens

present unlawfully in the United States from most forms of

discretionary relief from deportation, including asylum,

withholding of removal, and, as relevant here, cancellation of

removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1231(b)(3)(B)(ii), 1229b(b)(1)(C). Criminal convictions for

certain serious offenses also render lawful permanent

residents “removable” and ineligible for discretionary relief

from deportation. See 8 U.S.C. §§ 1227(a)(2), 1229b(a)(3);

Padilla v. Kentucky, 559 U.S. 356, 363–64 (2010) (“Under

contemporarylaw, if a noncitizen has committed a removable

offense . . . , his removal is practically inevitable but for the

possible exercise of limited remnants of equitable discretion

vested in the Attorney General to cancel removal for

noncitzens convicted of particular classes of offenses.”).
18 BALLINAS-LUCERO V. GARLAND

Convictions subsequently vacated by a state or federal

court may remain valid for immigration purposes in certain

circumstances. See Nunez-Reyes v. Holder, 646 F.3d 684,

688–89 (9th Cir. 2011) (en banc). In the foundational case,

In re Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other

grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006),

the BIA explained:

[I]f a court with jurisdiction vacates a

conviction based on a defect in the underlying

criminal proceedings, the respondent no

longer has a “conviction” within the meaning

of section 101(a)(48)(A) [of the INA]. If,

however, a court vacates a conviction for

reasons unrelated to the merits of the

underlying criminal proceedings, the

respondent remains “convicted” for

immigration purposes.

Id. at 624; see also In re Thomas & In re Thompson, 27 I&N

Dec. 674, 674 (A.G. 2019) (affirming In re Pickering and

extending its test to “state-court orders that modify, clarify,

or otherwise alter a criminal alien’s sentence”). When, after

reviewing the state court record, it is determined that “the

quashing of the conviction was not based on a defect in the

conviction or in the proceedings underlying the conviction,

but instead appears to have been entered solely for

immigration purposes,” the conviction remains valid in

immigration proceedings. In re Pickering, 23 I&N Dec. at

625. That is, if a conviction is vacated “solely for

immigration purposes,” or for other reasons “unrelated to the

merits of the underlying criminal proceedings,” it remains

valid for immigration purposes. Id. at 624–25. However, and

relevant to this case, a conviction vacated “on the basis of a
BALLINAS-LUCERO V. GARLAND 19

defect in the underlying criminal proceedings” is no longer

valid for immigration purposes. Id. at 625.

In the years since In re Pickering was decided, we have

applied its holding repeatedly. We have held that a criminal

conviction vacated by a state court because of a “procedural

or substantive defect” is not a “conviction” for immigration

purposes. Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir.

2006) (quoting In re Pickering, 23 I&N Dec. at 624). “A

vacated conviction can serve as the basis of removal only if

the conviction was vacated for reasons ‘unrelated to the

merits of the underlying criminal proceedings,’ that is, for

equitable, rehabilitation, or immigration hardship reasons.”

Id. at 1188–89 (quoting In re Pickering, 23 I&N Dec. at 624);

see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107

n.3 (9th Cir. 2006); Prado v. Barr, 949 F.3d 438, 441 (9th

Cir. 2020); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141

(9th Cir. 2010). A vacated conviction remains valid for

immigration purposes when it is vacated “solely for

rehabilitative reasons or reasons related to [the petitioner’s]

immigration status.” Nath, 467 F.3d at 1189 (emphasis in

original) (quoting Cardoso-Tlaseca, 460 F.3d at 1107 n.3);

accord Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.

2011) (same).

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

The BIA held that, because a noncitizen “has the burden

of demonstrating his eligibility for cancellation of removal,”

Ballinas-Lucero had the burden of demonstrating that his

convictions were vacated due to a substantive or procedural

defect, and not for equitable or rehabilitative reasons, and that

those convictions therefore no longer posed a bar to his

application for cancellation of removal. The Supreme
20 BALLINAS-LUCERO V. GARLAND

Court’s recent decision in another cancellation-of-removal

case, Pereida v. Wilkinson, 141 S. Ct. 754 (2021), persuades

us that the BIA was correct. In Pereida, the petitioner sought

to prove his eligibility for cancellation of removal, despite

having been convicted of a potentially disqualifying CIMT

offense—“attempted criminal impersonation.” Id. at 759. 

The statute under which Pereida stood convicted was

arguablydivisible (it included several CIMT sub-sections and

one non-CIMT subsection), and the question presented was

whether, given ambiguity in the state court record about

which subsection Pereida was convicted of violating, he had

been convicted of a disqualifying offense. Id. at 759–60. The

Court held that because Pereida bore the burden of proving

his eligibility for cancellation, in the face of ambiguous state

court records, “any lingering uncertainty about whether

Mr. Pereida stands convicted of a crime of moral turpitude

would appear enough to defeat his application for relief.” Id.

at 761.

In reaching this conclusion, the Court noted that the

burden of proving the presence (or absence) of a qualifying

criminal conviction “flips” from the government when it

seeks to prove removability to the applicant when relief from

removability is sought. Id. (comparing 8 U.S.C.

§§ 1229a(c)(3), 1227(a)(2)(A)(i) with § 1229a(c)(4)). The

Court explained, “These statutory features show that

Congress knows how to assign the government the burden of

proving a disqualifying conviction. And Congress’s decision

to do so in some proceedings, but not in proceedings on an

alien’s application for relief, reflects its choice that these

different processes warrant different treatment.” Id.

Consistent with the Court’s reasoning in Pereida, we hold

that applicants for cancellation of removal bear the burden of

proving not only that their convictions have been vacated, but
BALLINAS-LUCERO V. GARLAND 21

also that the vacated convictions are not valid for immigration

purposes.

We turn next to the question of whether Ballinas-Lucero

carried this burden.

C. Evidence of Effective Vacatur in this Case

In evaluating the criminal court record to assess the

reasons underpinning a court’s order of vacatur, the BIA

considers three types of evidence: (1) the law under which the

court issued its order, (2) the language of the court’s order

itself, and (3) the reasons provided by the noncitizen in the

request for post-conviction relief. In re Pickering, 23 I&N

Dec. at 625; see also In re Thomas, 27 I&N Dec. at 685. 

Ballinas-Lucero proffered two pieces of evidence supporting

his argument that the Orange County Superior Court vacated

his misdemeanor convictions due to legal defects in his initial

guilty pleas: (1) the statute under which the vacatur was

granted, and (2) his Memorandum of Points and Authorities

in support of his motion to withdraw his guilty pleas. The

BIA considered Ballinas-Lucero’s evidence and held that it

was “inconclusive” as to whether the state court vacated his

convictions “on the merits.” We disagree.

The BIA acknowledged that Ballinas-Lucero’s motion to

withdraw his guilty plea was brought pursuant to California

Penal Code § 1018. However, the BIA did not conduct any

analysis of the statute to determine whether it provides for

vacatur for substantive or procedural reasons or for

rehabilitative or equitable reasons. The statute provides:

On application of the defendant at any time

before judgment or within six months after an
22 BALLINAS-LUCERO V. GARLAND

order granting probation is made if entry of

judgment is suspended, the court may, and in

case of a defendant who appeared without

counsel at the time of the plea the court shall,

for a good cause shown, permit the plea of

guilty to be withdrawn and a plea of not guilty

substituted. . . . This section shall be liberally

construed to effect these objects and to

promote justice.

Cal. Penal Code § 1018.

Section 1018 requires California courts to permit

criminal defendants to withdraw a guilty plea if they were

unrepresented by counsel at the time of their plea, upon a

showing of “good cause.” Id. The California Supreme Court

has held that “good cause” for withdrawing a guilty plea

under § 1018 means “[m]istake, ignorance, or any other

factor overcoming the exercise of free judgment,” and that

“good cause” must be proven with “clear and convincing

evidence.” People v. Patterson, 391 P.3d 1169, 1175 (Cal.

2017) (quoting People v. Cruz, 526 P.2d 250, 252 (Cal.

1974)). Withdrawal may be based on the court’s or the

counsel’s failure to advise a criminal defendant of the

consequences of a guilty plea. Id. at 725 (“Before the trial

court accepts a defendant’s guilty or no contest plea, the court

must advise the defendant of his or her maximum possible

sentence . . . . Failure to do so may be good cause to allow the

defendant to withdraw the plea.”); Patterson, 391 P.3d

at 1179 (holding that counsel’s failure to advise defendant of

the immigration consequences of his guilty plea could

constitute good cause for withdrawal, even after petitioner

received a general advisement from the court). “The

defendant may not withdraw a plea because the defendant
BALLINAS-LUCERO V. GARLAND 23

has changed his or her mind.” People v. Archer, 178 Cal.

Rptr. 3d 722, 730 (Cal. Ct. App. 2014).

The grounds for allowing withdrawal of a guilty plea

under § 1018 are substantive and procedural defects in

the underlying proceeding. Section 1018 is readily

distinguishable from other state statutes we have previously

found to allow vacatur for equitable or rehabilitative reasons. 

See, e.g., Prado, 949 F.3d at 440–42 (holding that

California’s Control, Regulate, and Tax Adult Use of

Marijuana Act had reclassified Prado’s conviction “for policy

reasons of rehabilitation”); Poblete Mendoza, 606 F.3d

at 1142 (holding that any vacatur under Arizona Revised

Statutes § 13-907 was “for rehabilitative purposes”).

The BIA also considered the Memorandum of Points and

Authorities Ballinas-Lucero submitted to the Superior Court

in support of his motion to withdraw his guilty pleas. The

BIA noted that Ballinas-Lucero’s Memorandum “asserts that

the respondent felt pressured, did not understand his options,

did not discuss his case with an attorney, and was not

adequately advised of the immigration consequences of his

plea.” The BIA, however, did not evaluate Ballinas-Lucero’s

motion as evidence of the grounds for the state-court’s

decision, as In re Pickering instructs it to do. 23 I&N Dec.

at 625. Anyreasonable adjudicator readingBallinas-Lucero’s

Memorandum in support of his motion would be required to

find that the factual grounds asserted pertained

overwhelmingly to substantive and procedural defects in his

pleas, as specified in § 1018.

The only mention of immigration hardship in BallinasLucero’s Memorandum related to a legal defect in the

proceeding—that he did not sufficiently understand the
24 BALLINAS-LUCERO V. GARLAND

immigration consequences of his plea. See Patterson,

391 P.3d at 1176. The only equitable argument advanced in

his Memorandum was that it be “liberally construed” to

promote justice, which drew directly from the language of the

statute. Cal. Penal Code § 1018. Ballinas-Lucero’s

Memorandum made no reference to any post-conviction

rehabilitative events in Ballinas-Lucero’s life, and did not

discuss his immigration hardships, except to say that he did

not understand, at the time of his plea, “that his fate was

sealed” with immigration upon its acceptance by the court.

Because Ballinas-Lucero’s motion to withdraw his guilty

pleas was unopposed by the state, and because the Superior

Court granted his motion without any explanation, the

contents of his Memorandum in support of the motion are

critical to an understanding of the state court’s rationale for

vacating his convictions. Despite the clarity of BallinasLucero’s Memorandum, and of the criteria in § 1018, the BIA

found the “absence of any statement by the court regarding

the reasons for permitting the withdrawal of the respondent’s

guilty plea” to be dispositive. This was error. As the

Attorney General stated in In re Thomas, adjudicators

applying the “Pickering test . . . frequently determine whether

a vacatur is valid for immigration purposes by assessing the

text of the order of vacatur itself or the alien’s motion

requesting the vacatur.” 27 I&N Dec. at 685 (emphasis

added).

The record before the BIA compels a conclusion, contrary

to that of the BIA, that the Superior Court vacated BallinasLucero’s six misdemeanor convictions because of legal

defects in his pleas. Because the BIA’s finding regarding the

Superior Court’s dismissal of Ballinas-Lucero’s convictions

was not supported by substantial evidence, we grant the
BALLINAS-LUCERO V. GARLAND 25

petition for review. We remand to the BIA for further

proceedings to determine in the first instance (1) whether

Ballinas-Lucero’s remaining conviction under Cal. Penal

Code § 368(d) qualifies as a CIMT, and if so, whether the

petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II)

applies to it; and (2) whether Ballinas-Lucero satisfies the

other statutory requirements for cancellation of removal

under 8 U.S.C. § 1229b(b)(1).

Conclusion

We hold that Ballinas-Lucero bore the burden of proving

that his vacated convictions did not remain valid for

immigration purposes, and that he carried that burden. The

record in this case compels the finding that Ballinas-Lucero’s

convictions were vacated because of legal defects, and not

solely immigration purposes, or for rehabilitative or equitable

reasons. We therefore grant the petition for review and

remand the case to the BIA for further proceedings consistent

with this opinion.

The petition for review is GRANTED and the case is

REMANDED for further proceedings consistent with this

opinion.