                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0407n.06

                                             No. 10-4459

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                           FILED
                                                                                      Apr 13, 2012
ANNA BOAR,                                       )
                                                 )                              LEONARD GREEN, Clerk
          Petitioner-Appellant,                  )
                                                 )             On Petition for Review From the
v.                                               )             Board of Immigration Appeals
                                                 )
ERIC H. HOLDER, JR.,               UNITED STATES )
ATTORNEY GENERAL,                                )
                                                 )
          Respondent-Appellee.                   )




Before:          BOGGS, COOK, and WHITE, Circuit Judges.

                 BOGGS, Circuit Judge. An immigrant, Anna Boar, argues that she has successfully

vacated a state conviction, for immigration purposes, when a state court allowed her to withdraw her

guilty plea to that conviction and entered a guilty plea nunc pro tunc to a different offense that would

have no immigration consequences. We affirm the judgment of the Board of Immigration Appeals

(BIA) that she has not done so, because the only reasonable inference that can be drawn from the

record is that the vacating court took this action in order to prevent Boar from being deported.

                                                   I

          Anna Boar is a citizen of Romania who was admitted to the United States in 1995 as an

immigrant. On August 24, 1998, when Boar was twenty years old, she was convicted as a Youthful
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Trainee, as defined in Michigan Complied Laws (M.C.L.) §762.11,1 for the offense of first-degree

retail fraud.2 Boar pleaded guilty to this offense. She was sentenced to one year of probation. On

August 23, 1999, Boar was discharged from probation and her criminal case was dismissed pursuant

to the Youthful Trainee Act.

        On December 27, 1999, shortly after the offense was discharged, the former Immigration and

Naturalization Service filed a Notice to Appear with the Detroit, Michigan Immigration Court,

charging that Boar was removable as an alien convicted of a crime of moral turpitude, committed

within five years of admission, for which a sentence of one year or more may be imposed.

Immigration and Nationality Act (INA) § 237(a)(2)(A)(i); 8 U.S.C. § 1227(a)(2)(A)(i).

        On July 12, 2000 Boar attended a hearing before an immigration judge, where she denied that

she had been convicted of first-degree retail fraud, and thus denied that she was removable. She

filed a motion on the same day to terminate the removal proceedings, arguing that she had no



        1
          The Youthful Trainee statute provides: “[I]f an individual pleads guilty to a criminal offense,
committed on or after the individual's seventeenth birthday but before his or her twenty-first
birthday, the court of record having jurisdiction of the criminal offense may, without entering a
judgment of conviction and with the consent of that individual, consider and assign that individual
to the status of youthful trainee.” If an individual who committed a felony was assigned to youthful-
trainee status, the court was required to “do one of the following: (a) Commit the individual to the
department of corrections for custodial supervision and training for not more than 3 years . . . . (b)
Place the individual on probation for not more than 3 years . . . . (c) Commit the individual to the
county jail for not more than 1 year.” Id. at § 762.13(1). At the time of Boar’s conviction, if the
status of youthful trainee was not revoked, then upon the completion of the trainee’s supervision,
training, probation, or jail term, the court discharged the trainee and dismissed the proceedings. Id.
at § 762.14.
        2
       First-degree retail fraud is a felony under Michigan law, punishable by up to two years of
imprisonment and a fine of not more than $1,000. MICH . COMP. LAWS § 750.356C (1998).

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criminal convictions for purposes of INA § 237(a)(2)(A)(I) because her conviction had been

dismissed pursuant to the Youthful Trainee Act.

        Boar next sought to vacate the retail-fraud offense from her record entirely. On September

11, 2000, the Circuit Court for Oakland County, Michigan, allowed Boar to withdraw her guilty plea

to first-degree retail fraud. The court also allowed Boar to instead enter a plea nunc pro tunc to

second-degree retail fraud, in violation of M.C.L. § 750.356d, an offense punishable as “a 93-day

misdemeanor.”3 The court did not provide reasoning for its decision. Boar’s motion, however,

stated that she had completed her probation; all the defrauded property had been returned; that no

damage to the property was suffered; she owed no restitution; that she had been discharged from

probation; that she had not been found in violation of any laws since that offense; and that she was

a part-time student who worked two jobs to support her family. Boar also handwrote on the

typewritten motion that she wished to withdraw her guilty plea “[p]ursuant to MCR § 6.500 et seq.”4

        On October 12, 2000, Boar filed a renewed motion to terminate the removal proceedings in

the immigration court. She withdrew her former argument that she had no convictions on her



        3
         Because it is not punishable by one year of imprisonment or more, second-degree retail fraud
is not an offense that permits removal under INA § 237(a)(2)(A)(i).
        4
         Chapter 6.500 of the Michigan Court Rules deals with “Postappeal Relief.” The chapter
describes the form a motion for post-appeal relief must take, the process for filing and serving the
motion, and the procedure for hearing and considering the motion. The chapter does not set forth
the grounds on which a conviction can be overturned. In her brief, Boar suggests that the relevant
subsection of § 6.500 is § 6.508(d)(3), which states that the court may not grant post-appeal relief
to a party if the motion alleges “grounds . . . which could have been raised on appeal” unless the
party demonstrates “good cause for failure to raise such grounds . . . and . . . actual prejudice,” which
can include a defect in the proceedings that renders the plea involuntary.

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record.5 Instead, she argued that her guilty plea to first-degree retail fraud had been set aside due

to an infirmity in the legal proceedings. She did not provide any evidence of a legal infirmity other

than the nunc pro tunc plea to second-degree retail fraud.

        At a hearing before the immigration court on July 3, 2001, the immigration judge stated that

Boar had not met her burden of proof that the Michigan state court’s post-conviction actions

eliminated her conviction for immigration purposes. The judge reasoned that the Circuit Court had

not indicated the basis for its vacation of her conviction, and that Boar’s argument that the conviction

had been vacated due to a legal infirmity could not be proved.

        The immigration judge later denied Boar’s withholding of removal and ordered her to be

removed to Romania under INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I). The judge denied

Boar’s renewed motion to terminate the removal proceedings because Boar did not demonstrate that

her conviction was vacated for constitutional or statutory purposes as opposed to for rehabilitative

purposes.

        Boar appealed the decision. She argued that the immigration judge erred in holding that her

conviction made her subject to removal, because her new conviction, entered nunc pro tunc by the

Circuit Court, carried a maximum penalty of only 93 days and therefore did not qualify as an offense

that permits removal under INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I).

        The BIA dismissed Boar’s appeal, adopting and affirming the immigration judge’s decision.

The BIA determined that the Circuit Court had changed Boar’s plea nunc pro tunc to “enhance her


       5
        At another hearing, on January 3, 2001, Boar filed an application for asylum. This
application was denied on August 24, 2004. Boar does not appeal the denial of her application.

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Boar v. Holder

immigration status” and that Boar “remain[ed] convicted for immigration purposes of the initial

crime involving moral turpitude.”

       On February 7, 2006, Boar filed a petition for review of the Board’s decision. On January

8, 2007, the Attorney General filed an unopposed motion to remand the proceedings in light of

Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), which changed the burden of proof in cases like

Boar’s, holding that the Department of Homeland Security (DHS) had the burden of showing by

clear and convincing evidence that the petitioner’s conviction was vacated solely for rehabilitative

or immigration purposes.

       On March 13, 2007, the Sixth Circuit granted this motion, citing Pickering and Sanusi v.

Gonzales, 474 F.3d 341 (6th Cir. 2007), a case in which the government had been successful in

meeting this new burden. The Board of Immigration Appeals then remanded the case to the

immigration judge to permit the parties to present argument and evidence on whether the DHS had

met its burden of proof. The Board also ordered the immigration judge to address Boar’s

removability under Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005), which held that a trial

court’s decision to modify or reduce an alien’s sentence nunc pro tunc is entitled to full faith and

credit, and that the modification or reduction is valid for purposes of the immigration law without

regard to the court’s reasoning for its decision.

       On remand, the immigration judge denied Boar’s motion to terminate the removal

proceedings. The judge found that the Circuit Court’s decision to withdraw Boar’s guilty plea to

first-degree retail fraud was in fact based on Boar’s successful rehabilitation after the offense. The

judge determined that the transcript of the hearing in front of the Circuit Judge “clearly indicate[d]

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that [Boar’s] withdrawal of her initial plea and the subsequent nunc pro tunc plea was entered based

on Boar’s rehabilitation.” The immigration judge again ordered that Boar be removed to Romania.

       Boar appealed the immigration judge’s decision to the BIA. The BIA dismissed the appeal,

holding that the DHS had proven that Boar’s motion to withdraw her guilty plea to first-degree retail

fraud was based on rehabilitation and immigration purposes. The BIA determined that Matter of

Cota-Vargas was inapposite because Boar’s case involved the vacatur of her conviction, not just the

modification or reduction of her sentence.

       Boar has appealed the BIA’s decision. We deny the petition for review.



                                                 II

       Boar raises three issues in her appeal, but these collapse into one. Boar contends that her

motion to terminate the removal proceedings should have been granted based on the withdrawal of

her guilty plea and her subsequent nunc pro tunc plea to second-degree retail fraud, because the nunc

pro tunc plea to second-degree retail fraud completely eliminated her earlier conviction for first-

degree retail fraud. She argues that Matter of Cota-Vargas required the immigration judge to give

the nunc pro tunc plea full faith and credit with no regard to the reasons the judge gave for making

it.

       Where the BIA adopts an immigration judge’s reasoning while adding its own comments,

as is the case here, this court reviews both the immigration judge’s and the BIA’s decision. Singer

v. Ashcroft, 398 F.3d 396, 400–01 (6th Cir. 2005). On petitions from BIA decisions, we review

questions of law de novo, but give “substantial deference” to the BIA’s interpretation of the INA.

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Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir. 2010) (internal quotation marks omitted). Whether

an alien’s conviction renders her removable is a legal question that we review de novo. Sanusi, 474

F.3d at 345 (internal quotation marks omitted).

        For immigration purposes, a conviction is:

        [A] formal judgment of guilty of the alien entered by a court or, if adjudication of
        guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the
        alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts
        to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment,
        penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (emphasis added). Vacatur of a conviction may

render it invalid for immigration purposes, but this depends on the basis of the vacatur. If a

conviction is vacated because the process by which it was obtained was defective or illegal, then the

conviction is no longer valid for immigration purposes. See Pickering, 465 F.3d at 266 (stating that

a conviction vacated “because of procedural or substantive infirmities” is not valid for immigration

purposes).

        However, if the vacatur was entered for rehabilitative purposes, “solely to avoid immigration

hardship,” then the conviction remains valid for immigration purposes. Sanusi, 474 F.3d at 345

(citing Pickering, 465 F.3d at 266). The government bears the burden of proof of showing by clear

and convincing evidence, either by direct evidence or evidence “from which one could infer and

conclude,” that the original court vacated the conviction solely for rehabilitative purposes. Al-Najar

v. Mukasey, 515 F.3d 708, 715–16 (6th Cir. 2008) (citing Pickering, 465 F.3d at 270). When a court

vacates a conviction without explanation, the government may meet its burden when the “alien’s

request for vacatur before the state court contained no legal basis to set aside his conviction” because

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there is no evidence from which to infer that the writ was granted on a recognized legal ground. Al-

Najar, 515 F.3d at 717 (citing Sanusi, 474 F.3d at 341).

        A conviction for first-degree retail fraud, Boar’s original conviction, is a conviction that

permits removal because it is punishable under M.C.L. § 750.356C by imprisonment of up to two

years. However, the conviction was vacated by the Circuit Court, and a conviction for second-degree

retail fraud, an offense that does not qualify as removable, was entered nunc pro tunc. Therefore,

Boar does not have a removable offense on her record, unless the government can show by clear and

convincing evidence that the Circuit Court vacated Boar’s guilty plea to first-degree retail fraud

solely for rehabilitative or immigration purposes. If it did, then Boar’s conviction for first-degree

retail fraud is still valid for immigration purposes, and she is still removable. Al-Najar, 515 F.3d at

715–16.

        Boar’s motion in the Circuit Court, on the basis of which it vacated her conviction, provided

no justification for vacating the conviction other than a rehabilitative purpose. The only law Boar

cited was MCR § 6.500 et seq. Most of chapter 6.500 deals with the process and form to follow

when seeking post-appeal relief; it does not provide grounds on which relief can be granted.

Subsection 6.508(d)(3), which Boar’s brief suggests applies in her case, states that a court may not

grant relief to a defendant if they “allege[] grounds for relief, other than jurisdictional defects, which

could have been raised on appeal . . . unless the defendant demonstrates . . . good cause for failure

to raise such grounds on appeal . . . and . . . actual prejudice [such as] . . . in a conviction entered on

a plea of guilty, . . . the defect in the proceedings was such that it renders the plea an involuntary

one.”

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        Though Boar has indicated that law exists within Chapter 6.500 that could explain why the

Circuit Court did not reject post-appeal relief, she still gives no legal basis on which the court could

have granted relief. Specifically, her motion failed to discuss any grounds for relief, any “good

cause” for not raising these “grounds” on appeal, or any reason why her original plea should have

been found involuntary. Her barely articulated reference to law, undeveloped and unsubstantiated,

is no better than no reference to law at all. There is no evidence that the Circuit Court could have

vacated Boar’s conviction for first-degree retail fraud based on MCR § 6.500 et seq.

        Boar’s case is like Sanusi. In Sanusi, the defendant had a conviction for property theft that

made him removable for immigration purposes. Sanusi, 474 F.3d at 343. Another court vacated this

conviction, without any explanation of its reasoning. Ibid. Because Sanusi had not raised or argued

“any colorable legal basis for the vacation of his conviction,” but had only discussed in his motion

the “harsh immigration consequences” that the conviction would cause, the Sixth Circuit determined

that the only reasonable inference that could be drawn was that the conviction was vacated to prevent

Sanusi’s deportation. The record here is basically the same.6 The only reasonable inference that can

be drawn from the Circuit Court’s decision is that Boar’s guilty plea was withdrawn and her plea to

second-degree retail fraud was entered in order to prevent her from being deported. Therefore, the




       6
         Boar’s case is distinguishable from the case in Pickering. In Pickering, the court vacated
defendant’s conviction without explanation, but the defendant had presented a reasonable legal basis
for vacating the conviction. Because there was a colorable legal basis for vacating the conviction,
the Pickering court determined that it was appropriate to draw an inference that the court had based
its decision on that reasonable legal basis. Boar’s case is different; she did not provide the Circuit
Court with a colorable legal basis on which to vacate her conviction.

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BIA did not err in holding that Boar’s conviction for first-degree retail fraud was still valid for

immigration purposes.

       We also distinguish this case from Cota-Vargas, 23 I. & N. Dec. 849. Cota-Vargas dealt

with sentence modification or reduction, not the vacatur of a conviction. Id. at 850. The question

of whether a “conviction” exists under 8 U.S.C. § 1101(a)(48)(A) is separate from the determination

of the length of a sentence, or “term of imprisonment,” under 8 U.S.C. § 1101(a)(48)(B). A “state

court expungement of a conviction is qualitatively different from a state court order to classify an

offense or modify a sentence.” Rumirez v. Gonzales, 456 F.3d 31, 41 n.11 (1st Cir. 2006) (internal

quotation marks omitted). Cota-Vargas itself recognized the distinction in distinguishing the

Pickering line of cases, which apply to Boar’s case. Cota-Vargas, 23 I. & N. at 851–52.



                                                III

       For the reasons given above, the petition for review of the judgment of the Board of

Immigration Appeals is DENIED.




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       HELENE N. WHITE, Circuit Judge (dissenting). Because I conclude that the government

has not shown by clear and convincing evidence that Boar’s conviction was vacated solely for

rehabilitative or immigration-related purposes, I respectfully dissent.

       Under Pickering, Boar’s vacated conviction “remains valid for immigration purposes only

if it was vacated solely for rehabilitative reasons” or reasons related to her immigration status.

Pickering v. Gonzales, 465 F.3d 263, 270 (6th Cir. 2006) (emphasis in original). The relevant

inquiry centers on the basis on which vacatur is granted, not the reasons for which it is sought. Thus,

the “motive of the Petitioner in seeking to have [her] conviction quashed is of limited relevance ....”

Id. at 267. In Pickering, the petitioner indicated that he sought to quash his drug conviction solely

for immigration-related purposes, but cited the Canadian Charter of Rights and Freedoms as the legal

basis for the request. In re Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003). The Canadian court

quashed his conviction without referencing any legal authority or providing its rationale. Yet we

reversed the BIA and granted Pickering’s petition, holding that the government could not show by

clear and convincing evidence that the court vacated Pickering’s conviction solely to avoid

immigration consequences. Pickering, 465 F.3d at 270.

       Here, the circumstances belie the suggestion that the order permitting Boar to withdraw her

guilty plea was entered for rehabilitative purposes because at the time the court permitted Boar to

withdraw her plea, the charge against Boar had already been dismissed for rehabilitative purposes

under the HYTA, based upon Boar’s lack of further criminal activity and successful completion of

HYTA conditions.



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       This still leaves the possibility that the order was entered solely for reasons related to Boar’s

immigration status. However, there is nothing in the record to indicate that the order permitting Boar

to withdraw her guilty plea—which incorporated Boar’s motion made pursuant to Mich. Ct. R. §

6.500 et seq.,1 as well as the new plea agreement with the prosecutor—was entered for immigration

purposes. We can speculate that it was, but in the absence of any indication that the grounds for the

order were solely immigration-related—in either Boar’s motion, the transcript of the hearing, or the

order granting her motion to withdraw her guilty plea—we cannot presume that the court acted solely

to enable Boar to avoid adverse immigration consequences. Pickering, 465 F.3d at 269 n.4. The

contrary speculation by Boar’s counsel—that the new plea agreement had as much to do with Boar’s

original counsel’s ineffective assistance in permitting her to unnecessarily plead to a felony—is

equally plausible on this record.

       The government carries a heavy burden when it seeks to deport a resident alien. Pickering,

465 F.3d at 268. Because I conclude that it has not met that burden by clear and convincing

evidence, I would reverse the decision of the BIA and grant Boar’s petition.




       1
         Boar’s citation to Mich. Ct. R. § 6.500 et seq., which permits relief from a judgment of
conviction on substantive grounds, distinguishes this case from Sanusi v. Gonzales, 474 F.3d 341
(6th Cir. 2007), where the petitioner did not raise any colorable legal basis for the vacation of his
conviction, instead asserting only his ignorance of immigration law at the time he entered his plea
and asking for mercy from the harsh immigration consequences of his conviction. Sanusi, 474 F.3d
at 347.

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