Less than two weeks ago, the Board of Immigration Appeals in Matter of Dingus, 28 I. & N. Dec. 529 (BIA 2022) held that if a state's nunc pro tunc order modifies or amends an order entering a criminal conviction, the reason for the modification or amendment will dictate whether the modified or the original order should be given effect for immigration purposes.
If the modification or amendment was to correct a procedural or substantive defect in the underlying criminal proceedings, the original conviction will be invalid for immigration purposes, and instead the modified conviction will be relied upon. If, however, the reason for the modification was unrelated to the merits of the underlying criminal proceedings, for example the modification was the result of rehabilitation or to avoid immigration consequences, then the modified order would not be given any effect and the original conviction would stand for immigration purposes.
Break it down for me a little more ...
The Underlying Criminal Case
Shelley Dingus is a citizen of the United Kingdom, and was admitted as a lawful permanent resident of the United States in 2012. Five years later, though, she was convicted under Virginia law of 5 counts of distribution of a Schedule II controlled substance – namely, oxycodone. She entered into a plea agreement, which provided that she was pleading guilty to distribution of a Schedule II substance, but significantly didn't specify that the controlled substance was oxycodone. Following the plea, Dingus was sentenced to 20 years imprisonment.
In 2019, however, a Virginia court issued an order "nunc pro tunc" (meaning an order with retroactive effect) correcting the plea agreement to show that she was found guilty of distributing salvinorin, a Schedule I controlled substance, and not oxycodone (a Schedule II substance). No other changes to the order were made, and her term of imprisonment remained the same.
Significant to the story later, while salvinorin is a controlled substance under Virginia law, it is NOT a federally controlled substance.
The Immigration Court Proceedings
Following her criminal conviction for distributing salvinorin, the Department of Homeland Security charged her as someone convicted of a crime involving moral turpitude, and alleged she was removable from the United States. While Dingus admitted the factual allegations, she nonetheless challenged the charge that she was removable.
The immigration judge concluded she was removable as charged, but accepted her application for a waiver of those removal charges pursuant to Section 212(h) of the Immigration and Nationality Act. In response to her waiver application, though, the government filed a motion to pretermit, essentially asking the immigration judge to determine that Dingus was not statutorily eligible for the waiver to begin with because she had been convicted of a violation involving a federally controlled substance - i.e., oxycodone.
The Immigration Judge agreed with the government, finding that Dingus had not met her burden of proving that the modified, nunc pro tunc order was issued to correct a procedural or substantive defect in the criminal proceeding (which would require the judge to give the modified order effect), rather than being amended for a reason related to rehabilitation or immigration hardships (which then would allow the immigration judge to disregard the modified criminal order for immigration purposes).
Even more shocking, however, was that prior to rendering the oral decision, the Immigration Judge asked the attorney representing the Department of Homeland Security whether he wanted to amend the allegations in the charging document to reflect that Dingus’ controlled substance conviction was for distribution of oxycodone rather than salvinorin (despite the modified order entered in the criminal case). At the Immigration Judge’s insistence, the DHS attorney orally amended the charges pursuant to which the Immigration Judge crossed out "salvinorin" on the Notice to Appear and replaced it with "oxycodone."
Dingus was never given an opportunity to plead against or contest these oral amendments to the Notice to Appear, and she appealed the Immigration Judge’s determinations (including the finding that she was convicted of a controlled substance and not eligible for a waiver of removal) to the Board of Immigration Appeals (the “BIA”).
The Board of Immigration Appeals Vacates the Immigration Judge's Decision
Relying on one of its own opinions from 2003 (Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)), the Board of Immigration Appeals held that Dingus' conviction was not a conviction relating to a controlled substance as defined in the Immigration and Nationality Act, therefore she was not ineligible for the waiver of removal that she was seeking.
In coming to this conclusion, the BIA pointed out that the party bearing the burden of proving that the modification was to correct a procedural or substantive defect in the underlying criminal proceeding, rather than the result of rehabilitation or for immigration purposes should provide the Immigration Court with as much documentation and information as possible relating to the modification or amendment. This includes, but is not limited to copies of the nunc pro tunc order, the motions filed with the court that issued the nunc pro tun order, as well as the state law upon which the modification or amendment was based.
In Dingus' case specifically, the BIA found that the nunc pro tunc order indicates there were "errors on the fact of the judgment … and that the parties intended for [Dingus] to be convicted of five (5) counts of Distribution of a Schedule I Controlled Substance (to wit: Salvinorin A)" and that there was a scrivener's error in the original plea agreement.Thus, because the modification of the order was to correct a defect in the underlying criminal case, and because the state court judge had the legal authority to correct the order, the BIA determined that the the Immigration Judge erred in relying on the original criminal order rather than the modified one.
"The nunc pro tunc order, to which we give full effect, unambiguously specifies that the respondent was convicted of distributing salvinorin A, which, as noted, is not federally controlled. Consequently, based on the record before us, the respondent's conviction is not a controlled substance within the meaning [the immigration statutes] … [and] does not render her ineligible for a section 212(h) waiver."
- Matter of Dingus, 28 I. & N. Dec. 529, 538 (BIA 2022)
As a result, the BIA remanded the case back to the Immigration Judge for further proceedings to determine whether she is otherwise eligible to have her removal waived. But the BIA did not stop there, as it further instructed the Immigration Judge to "make further findings of fact and reanalyze whether the respondent's conviction, as amended by the unc pro tunc order, renders her removable … as a respondent convicted of or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." In other words, not only did the BIA instruct the judge that the criminal conviction did not bar Dingus from seeking a waiver of removal, the BIA requires that the Immigration Judge determine whether or not her conviction is one for which she could be deported in the first place.
What if I'm in Deportation Proceedings?
It is important to remember that each is case different, and there is no one-size-fits-all solution. As a result, it is strongly encouraged that you seek the advice of a licensed immigration attorney to help guide you through the process.
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Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
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