Monday, December 26, 2005

Pinho: Motive for Vacating Conviction Must Be Revealed In The Record

Pinho v. Gonzales
Filed 12/20/05, No. 04-3837
Pinho v. Atty Gen USA

Esteemed attorney Thomas Moseley gained a striking victory for immigrants who successfully have their convictions overturned and wish to use that fact to prevent the government from deporting them based solely on the convictions that they've overturned.

The Third Circuit ruled that if the record of conviction states that a conviction is overturned because of a problem with the original conviction, then an immigration court cannot rely on that conviction in trying to deport someone.

The immigration officials have for whatever reason adopted a rule that if the motive for overturning a conviction is solely to help avoid deportation (or any other immigration consequence), the immigration courts must ignore the fact that the conviction has been overturned or modified. (This rule is described in In re Pickering, 23 I. & N. Dec. 621 (B.I.A. 2003).) This is a very harsh rule to adopt, but the Third Circuit ruled that immigration officials may adopt this rule even though it treats some exonerated-convicts differently from others in immigration court.

The Third Circuit describes PTI or pre-trial intervention in New Jersey which if done carefully can avoid immigration impact because it might be possible to avoid pleading guilty or admitting that you have committed the crime along with obtaining a dismissal of the charges through the PTI program. The Third Circuit suggests that from 1992-1999, prosecutors wrongly prevented anyone who arguably possessed drugs with intent to distribute them near a school from entering the PTI program.

In this case, the New Jersey judge who overturned the prior conviction stated on the record that the reason was the procedural flaw in the earlier conviction, that the defendant had not been given effective assistance from his trial counsel. The immigration attorneys argued to the Third Circuit that despite the clear language that the decision was based on a procedural flaw, the Third Circuit should look around behind the clear language and conclude that the true, unstated motive for overturning the conviction was merely to help the immigrant avoid consequences in immigration court.

The Third Circuit rejected the immigration officials' argument, ruling that the motive for overturning a conviction must be discerned by looking at what is stated in the record, without resorting to unstated motives that do not appear anywhere in the record. To adopt hypothetical conjecture of true motives would require forcing state court judges and state prosecutors to testify in immigration court about what their true motives and true, unspoken thoughts were.

Not only would such a procedure by absurd and impractical, it would also fail to give proper respect in federal cases for state decisions about the meaning of state laws.

Therefore, the Third Circuit adopted what it calls a "categorical" approach -- look at the record and what details apply to the category of action taken rather than doing extensive examination of the unstated details in the case.

The Third Circuit also addressed how the immigrant had exhausted all his ways to challenge the ruling before the agency, even though the basis for the argument that gave rise to the case was a request for a work permit that had since been granted.


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