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A Vacated Conviction Can Still Get You Deported, 8th Cir. Rules

By Jonathan R. Tung, Esq. on March 04, 2016 | Last updated on March 21, 2019

When Arturo Andrade-Zamora petitioned to have his removal from the United States canceled, the Immigration Judge who handled his case decided that despite its vacatur, Zamora should be deported back to Mexico anyway. The circuit eventually agreed with the IJ and the BIA.

Basic Facts

Zamora came to the United States at some unknown point in the past and had been staying in the country without ever being lawfully admitted. The US government got wind of his illegal status and served him with a Notice to Appear for his removal proceedings. At the hearing, he admitted his removable status, but then told the government that he would seek a cancellation.

A few months later, Zamora was convicted of theft in the fourth degree; and the government sent Zamora another notice, this time justifying it because he had been convicted of a crime of moral turpitude. The trial court which handed down the conviction later vacated his conviction because of later "material evidence," but did explain what this material evidence was, or why the vacatur was justified.

"For Immigration Purposes"

Cases of this sort are governed by the Immigration and Nationality Act (INA), which provides that candidates for deportation must prove that they are eligible for cancellation of removal. Zamora had unsuccessfully tried to convince the BIA that the onus was on the government to prove that candidates should be on the list. Not true. Thus, Zamora had to prove the reason for the vacatur.

Unfortunately for Zamora, a vacatur would have helped him if not for "immigration purposes" -- that is, a conviction vacated just to avoid the defendant getting deported out of the country. And here, the Circuit found ample evidence to suggest that the Iowa State Court had actually vacated his conviction for theft mostly so that he would stay in the country, not for any substantive reasons that would have acquitted him. In fact, the state court provided no reasoning at all.

As a result, Zamora, who had actually argued that the vacated conviction "spoke for itself," held the responsibility of proving to the BIA why the conviction had been vacated. And since the record was devoid of any such reasoning, the circuit affirmed that the IJ properly found that Zamora committed a crime of moral turpitude which necessitated his deportation.

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