     Case: 13-60255      Document: 00512553738         Page: 1    Date Filed: 03/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 13-60255                                 FILED
                                  Summary Calendar                           March 7, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
IVAN ALFREDO HERNANDEZ-CARDOZA,

                                                 Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 451 832


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Ivan Alfredo Hernandez-Cardoza (Hernandez), a native and citizen of
Mexico, petitions for review of a decision of the Board of Immigration Appeals
(BIA) denying his motion to reopen his removal proceedings.                      Hernandez
sought reopening based on the vacatur of his New Mexico conviction of battery
on a household member, a conviction which made him statutorily ineligible for
cancellation of removal. See 8 U.S.C. §§ 1227(a)(2)(E)(i), 1229b(b)(1)(C).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-60255

      Hernandez contends that the documents submitted in connection with
his motion to reopen establish that his conviction was vacated as a result of a
procedural or substantive defect in the underlying criminal proceeding.
Therefore, he asserts, under BIA precedent the conviction is no longer valid for
immigration purposes. The Respondent argues that the BIA rationally denied
the motion to reopen because Hernandez did not meet his burden to show that
the conviction was vacated due to a procedural or substantive defect.
      This court employs a “highly deferential abuse-of-discretion standard”
when reviewing the denial of a motion to reopen immigration proceedings.
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).         Such motions are
disfavored, and the moving party must carry a heavy burden to prevail. See
INS v. Abudu, 485 U.S. 94, 110 (1988). Even if this court might think the
denial of a motion to reopen to be in error, the ruling will stand if “it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Zhao, 404 F.3d at 304 (internal quotation
marks and citation omitted).
      The parties argue their respective positions under In re Pickering, 23
I.&N. Dec. 621 (BIA 2003). Pickering, however, is not the law of this circuit.
See Garcia-Maldonado v. Gonzales, 491 F.3d 284, 291 (5th Cir. 2007). Under
our precedent, “a vacated conviction, federal or state, remains valid for
purposes of the immigration laws.” Renteria-Gonzalez v. INS, 322 F.3d 804,
814 (5th Cir. 2002). The BIA’s rejection of Hernandez’s contention that the
vacated conviction was no longer valid is consistent with the rule of Renteria-
Gonzalez, and we discern no abuse of discretion. See Zhao, 404 F.3d at 304.
As an alternative ground for our disposition, we briefly address below the BIA’s




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                                 No. 13-60255

application of the Pickering approach and again reach the conclusion that no
abuse of discretion has been shown.
      “[T]here is a significant distinction between convictions vacated on the
basis of a procedural or substantive defect in the underlying proceedings and
those vacated because of post-conviction events, such as rehabilitation or
immigration hardships.” Pickering, 23 I.&N. Dec. at 624. Where a case is
vacated based on a defect in the underlying criminal proceedings, the alien no
longer has a “conviction” for purposes of the immigration laws. See id. “If,
however, a court vacates a conviction for reasons unrelated to the merits of the
underlying   criminal    proceedings,   the     [alien]   remains   ‘convicted’   for
immigration purposes.” Id. In making this determination, the BIA “look[s] to
the law under which the [vacating] court issued its order and the terms of the
order itself, as well as the reasons presented by the [alien] in requesting that
the court vacate the conviction.” Id. at 625.
      As the BIA determined, the evidence does not reveal the reason that the
conviction was vacated, and none of the documents indicate a determination
that Hernandez was not properly advised as to the immigration consequences
of his plea, which was the basis on which he sought vacatur.             Given the
deficiencies in the supporting evidence under Pickering, which were amply
discussed by the BIA, Hernandez fails to establish that the BIA abused its
discretion in denying his motion to reopen. See Zhao, 404 F.3d at 304.
      In view of the foregoing, we need not address Hernandez’s contentions
as to the BIA’s determination that he did not satisfy the 10-year continuous
presence requirement. The petition for review is DENIED.




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