Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578 

In re Gildardo CHAVEZ-Martinez, Respondent 

File A37 731 348 - Chicago 

Decided August 31, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) An alien seeking to reopen proceedings to establish that a conviction has been vacated 

bears the burden of proving that the conviction was not vacated solely for immigration 

purposes. 

(2) Where the respondent presented no evidence to prove that his conviction was not vacated

solely for immigration purposes, he failed to meet his burden of showing that his motion 

to reopen should be granted. 

FOR RESPONDENT: Maria Gloria Najera, Esquire, Addison, Illinois 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Lynn K. Hollander, Assistant 

Chief Counsel 

BEFORE: Board Panel: FILPPU and PAULEY, Board Members; M. C. GRANT, 

Temporary Board Member. 

M. C. GRANT, Temporary Board Member: 

This case was last before us on January 3, 2007, when we affirmed the 

Immigration Judge’s September 2, 2005, decision denying the respondent’s

applications for cancellation of removal under section 240A(a) of the 

Immigration Nationality Act, 8 U.S.C. § 1229b(a) (2000), and voluntary

departure, and ordering him removed from the United States. The respondent

has now filed a motion to reopen seeking to show that he is no longer 

removable. The respondent’s motion will be denied. 

The respondent is a native and citizen of Mexico who was admitted to the 

United States as an immigrant on April 1, 1983. On November 30, 2001, 

removal proceedings were commenced against the respondent as a

consequence of his Illinois conviction for the offense of criminal sexual abuse. 

An Immigration Judge ordered the respondent removed on January 31, 2002.

During the pendency of the respondent’s appeal, he filed a motion to 

remand, alleging that his underlying conviction had been vacated and that he

had been resentenced to simple battery. On May 30, 2002, we granted the 

respondent’s motion. On remand, the Immigration Judge asked the parties for 

272
Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578 

evidence establishing the reason that the respondent’s sexual abuse conviction

had been vacated. The Immigration Judge granted the respondent multiple 

continuances, but no additional evidence was ever provided. In his 

September 2, 2005, decision, the Immigration Judge determined that the 

respondent had not presented evidence demonstrating that his conviction for 

sexual abuse was vacated as a result of a procedural or substantive defect in the 

underlying criminal proceedings. He therefore concluded that it remained 

valid for immigration purposes, rendering the respondent ineligible for

cancellation of removal. 

On January 3, 2007, we dismissed the respondent’s appeal. The respondent

filed the instant motion, requesting that we reopen the proceedings based on

new law establishing that the Department of Homeland Security (“DHS”)

bears the burden of proving that a conviction has been vacated solely for

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

(reversing Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)). We find that 

reopening of the proceedings is not warranted. See 8 C.F.R. § 1003.2(c)(1)

(2007).

Contrary to the respondent’s assertion, there has not been a fundamental 

change in the law regarding vacated convictions that warrants reopening of

proceedings. As a general rule, we give full faith and credit to State court 

actions that purport to vacate an alien’s criminal conviction. Matter of 

Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). Nonetheless, if a court 

vacates an alien’s criminal conviction solely on the basis of immigration 

hardships or rehabilitation, rather than on the basis of a substantive or 

procedural defect in the underlying criminal proceedings, the conviction is not 

eliminated for immigration purposes and will continue to serve as a valid 

factual predicate for a charge of removability despite its vacatur. Matter of 

Pickering, supra; see also Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005)

(deferring to our decision in Matter of Pickering and holding that a State

felony conviction remained valid for immigration purposes, even though it was 

amended to a misdemeanor by the State court).

There is a conflict among the Federal circuit courts of appeals

regarding which party bears the burden of proving why a conviction has been

vacated in the context of a motion to reopen. See Nath v. Gonzales, 467 F.3d 

1185, 1188-89 (9th Cir. 2006) (holding that the DHS bears the burden of 

showing that an alien’s conviction remains valid for immigration purposes); 

Rumierz v. Gonzales, 456 F.3d 31, 40-41 (1st Cir. 2006) (holding that the alien

bears the burden of proving that a conviction was not vacated solely for

immigration reasons). The United States Court of Appeals for the Seventh 

Circuit, the jurisdiction in which this case arises, has not ruled on which party

bears the burden of proving why a conviction has been vacated in the context

of a motion to reopen. 

273
Cite as 24 I&N Dec. 272 (BIA 2007) Interim Decision #3578 

In this case, no evidence was ever submitted either before the Immigration

Judge or the Board to establish why the respondent’s conviction was vacated.

At this late stage of the proceedings, we find that the burden of proving why

the conviction was vacated is appropriately placed on the respondent as the

party seeking reopening. See INS v. Abudu, 485 U.S. 94 (1988); see also 

Matter of Coelho, 20 I&N Dec. 464, 472-73 (BIA 1992) (holding that a party

who seeks a remand or reopening of the proceedings bears a “‘heavy burden’”

of demonstrating that if his motion to reopen were granted, the new evidence 

would change the outcome of the case (quoting INS v. Abudu, supra, at 110)).

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

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

position to know why the conviction was vacated and to offer evidence related

to the record of conviction.1

 However, he failed to submit any relevant 

evidence, despite the multiple continuances granted by the Immigration Judge. 

To the extent that the respondent relies on Pickering v. Gonzales, supra, we 

find that it is not binding on the present matter, as it is a decision of the Sixth 

Circuit. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989) (explaining

that the Board historically follows a court’s precedent in cases arising in that

circuit). Moreover, unlike Pickering v. Gonzales, this case involves a motion 

to reopen rather than an appeal from a finding of removability. Therefore the 

allocation of the burden of proof is different and the situation is

distinguishable.

Based on the foregoing, we conclude that an alien seeking to reopen

proceedings to establish that his conviction has been vacated bears the burden

of proving that the conviction was not vacated solely for immigration 

purposes. Because the respondent has presented no evidence to prove that his

conviction was not vacated solely for immigration purposes, we find that he 

failed to meet his burden of showing that reopening of the proceedings is 

warranted. Accordingly, the respondent’s motion will be denied. 

ORDER: The motion is denied. 

 We recognize that the respondent would be in a similar position in the context of 

determining his removability, but we express no opinion as to the proper result in such a 

case. 

274 

1