The Board of Immigration Appeals (BIA) issued a precedential decision in that addresses the circumstances under which a state court vacatur will be recognized for immigration purposes. Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). In this case, a lawful permanent resident from Sudan moved to reopen his removal proceedings after he successfully vacated two theft convictions in Kansas for which he had been ordered removed. The basis for the vacatur of the theft convictions under Kansas law was a post-conviction motion alleging that he “was not competently advised by counsel of the nature of the plea agreement, its terms, the resulting convictions, or its potential collateral consequences.” Azrag, 28 I&N Dec. at 785.  However, the motion was not accompanied by any evidence to support the allegations. The state court in Kansas issued an order several days after the motion was filed allowing the respondent to withdraw his guilty plea. The respondent later entered a guilty plea to a single amended theft charge with a sentence of probation and 25 hours of community service. If the vacatur and new plea were recognized by immigration authorities, this would defeat the charges of removability lodged against him and allow him to keep his green card.    

However, the BIA found insufficient evidence in the record to determine that the convictions were vacated because of a defect in his criminal proceedings (that is, the constitutional right to effective assistance of counsel). The general rule with state court vacaturs is that they are recognized for immigration purposes when they are related to a substantive or procedural defect in the underlying proceedings, such as ineffective assistance of counsel; they are not recognized when they are done for purely rehabilitative purposes, such as to avoid immigration consequences. As in this case, the line between these two results is thin. It is not always easy for an adjudicator to determine whether a vacatur is due to a constitutional violation or a rehabilitative reason since both motions will often reference adverse immigration consequences as a reason for requesting relief.    

  Here the BIA rested its reasoning on the failure of the state court judge to make specific findings of fact as to the respondent’s prior attorney’s ineffective assistance of counsel. The state court also did not specify the law under which it vacated the convictions. The BIA also noted that there was no evidence in the state court record that supported Mr. Azrag’s allegations, as his counsel’s statements in the post-conviction relief motion are not considered evidence. The BIA also relied on the fact that the respondent has the burden of proof in filing a motion to reopen to demonstrate the reason for the vacatur, which he had failed to do.    

Implications for Practitioners    

This case illustrates the importance of building an evidentiary record in state court proceedings that seek to vacate criminal convictions. It is easy to see a slight change in circumstances in which the opposite result would have been reached in the case. For example, if the removal proceedings were still at the initial stage in which DHS has the burden to establish by clear and convincing evidence, DHS may have been unable to establish its burden given the ambiguous record below. The fact that this was a motion to reopen in which the respondent had the burden of proof likely made a significant difference in the result here. 

Similarly, had Mr. Azrag included a detailed affidavit with his post-conviction motion alleging ineffective assistance by prior counsel, instead of simply relying on his counsel’s statements, this may have been sufficient evidence to satisfy the BIA as to the reasons for the vacatur. Finally, if the state court had cited a specific state law or made factual findings as to the constitutional violation, it is possible this case would have turned out differently. While the result is unfortunate for Mr. Azrag, the case can help guide immigration and criminal practitioners in building a more complete record when seeking state court vacaturs.