Board of Immigration Appeals Rules on Reopening a Case
By Ajay Choudhary
Some non-citizens are ordered deported for having been convicted of a crime. What happens if those persons subsequently convince a criminal court to vacate (erase) their conviction? The Board of Immigration Appeals recently addressed this issue.
The name of the case that was decided by the Board of Immigration Appeals is Matter of Chavez-Martinez. In that case, Gildardo Chavez-Martinez was ordered deported for having been convicted of sexual abuse. Chavez-Martinez subsequently convinced a criminal court to vacate his conviction. Chavez-Martinez then filed a motion that asked the Board of Immigration Appeals to reopen his case.
The Board of Immigration Appeals ruled that if a person wants to reopen his case based on the vacation (erasure) of a conviction, then that person has the burden of proving that his conviction was vacated on the merits, rather than for an immigration purpose. The Board of Immigration Appeals denied Chavez-Martinez’s motion to reopen, ruling that Chavez-Martinez failed to prove why the criminal court vacated his conviction.
The lesson from this case is that when a non-citizen is able to convince a criminal court to vacate a conviction, the non-citizen should try to get the criminal court to state, in writing, that the conviction is being vacated because of a substantive or procedural defect in the original criminal case.
Ajay Choudhary is an attorney at Coane and Associates, 1900 West Loop South, Suite 820, Houston, Texas 77027. His e-mail address is ajay.choudhary@coane.com and his phone number is (713) 850-0066.