                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 ______________

                      No. 16-1354
                    ______________

              RAUL RIVAS RODRIGUEZ,
                 a/k/a RAUL RIVAS,
                            Petitioner
                         v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
                      Respondent
              ______________

Petition for Review of an Order of the Board of Immigration
                          Appeals
                (Agency No. A037-640-387)
         Immigration Judge: Hon. Walter A. Durling
                     ______________

       Submitted Under Third Circuit LAR 34.1(a)
                  November 18, 2016
                   ______________

 Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.

           (Opinion Filed: December 19, 2016)
Fabian Lima, Esq.
1500 Walnut Street
Suite 206
Philadelphia, PA 19102

      Counsel for Petitioner

Juria L. Jones, Esq.
Holly M. Smith, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent

                      ______________

                         OPINION
                      ______________

SHWARTZ, Circuit Judge.

       Raul Rivas Rodriguez (“Rivas”) petitions for review of
the decision of the Board of Immigration Appeals (“BIA”)
dismissing his appeal from an order of the Immigration Judge
(“IJ”) denying his motion to terminate removal proceedings
and ordering him removed to the Dominican Republic.
Because the conviction that served as a basis for his removal
has been vacated, and the Notice of Removal did not specify
his participation in a deferred adjudication program as a basis
for removal, we will grant the petition.




                               2
                               I

       Rivas, a native and citizen of the Dominican Republic,
was admitted to the United States as a legal permanent
resident when he was two years old. In September 2013,
following a bench trial in the Philadelphia Municipal Court,
he was convicted of the purchase, receipt, and intentional
possession of phencyclidine (“PCP”), and was sentenced to
eighteen months’ probation.

       Following these convictions, the United States
Department of Homeland Security initiated removal
proceedings against Rivas and served him with a “Notice to
Appear.” A.R. 569-71. The Notice stated that he was subject
to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for having
been convicted of two state law violations relating to a
controlled substance.

        Prior to his immigration hearing and after receiving
this notice, Rivas petitioned the Municipal Court for relief
from his convictions under the Pennsylvania Post Conviction
Relief Act (“PCRA”). He argued that he received ineffective
assistance of counsel because his trial counsel failed to advise
him of the possible immigration consequences arising from
his conviction and for advising him not to appeal the trial
verdict. During the three-day PCRA hearing, Rivas’s trial
counsel testified that he advised Rivas of the immigration
consequences flowing from a conviction and that he could not
recall the advice he gave regarding an appeal but “probably
would have advised [Rivas] that . . . it is still not a winnable
case. . . .” A.R. 149. After the hearings, and at the request of
the Commonwealth, the Municipal Court denied the PCRA




                               3
petition and then, by agreement of the parties, vacated the
guilty verdicts and placed Rivas on pretrial probation for
three years as part of a deferred adjudication agreement.
Included in the order vacating the judgment were conditions
requiring Rivas to: (1) “stipulate to all of the
Commonwealth’s evidence in the underlying trial”; (2) reside
in Pennsylvania; (3) report to court, (4) participate, if
necessary, in employment training as well as drug testing and
treatment; and (5) “agree that any violation of any of these
conditions will result in a Negotiated Stipulated Trial.” A.R.
120. The Commonwealth agreed to withdraw the charges if
Rivas successfully completed his pretrial probation.

        Rivas thereafter filed a motion to terminate his
removal proceedings on the ground that his convictions,
which constituted the basis for his potential removal, had
been vacated. His motion also averred that “[t]he sentences
have not been vacated solely to avoid the immigration
consequences of his conviction.” A.R. 128. The IJ denied
Rivas’s motion and ordered him removed to the Dominican
Republic. The IJ found that since Rivas’s trial counsel
testified at the PCRA hearings that he did advise Rivas of the
immigration consequences of an adverse judgment, and since
the Municipal Court denied the PCRA petition, the IJ was
“convinced that the primary and probably the only reason for
the conviction vacatur was to permit the respondent to avoid
the [i]mmigration consequences of his drug conviction.”
App. I 9-10.

      The BIA agreed, finding that the Municipal Court
vacated Rivas’s convictions to allow him to avoid their
immigration consequences. The BIA also found that even if
Rivas’s convictions had been vacated on substantive grounds,




                              4
the terms of the order vacating the convictions still amounted
to a “conviction” under the Immigration and Nationality Act
(“INA”). Specifically, the BIA found that since Rivas
stipulated to all of the state’s evidence against him as part of
the agreement vacating his convictions, and since his liberty
was restrained under the resulting probation program, he
remained “convicted” under immigration law and was
removable. Consequently, the BIA affirmed the IJ’s denial of
Rivas’s motion to terminate on two independent grounds.
Rivas petitions for review.

                              II1


       1
         The IJ had jurisdiction under 8 C.F.R. § 1240.1(a),
and the BIA had jurisdiction pursuant to 8 C.F.R.
§ 1003.1(b)(3). Although we generally lack jurisdiction “to
review any final order of removal against an alien who is
removable by reason of having committed a criminal offense
covered in [§ 1227(a)(2)(B)],” we have jurisdiction to review
an order of removal to the extent it raises “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C)-(D).
Consequently, we have jurisdiction to determine “whether, as
a matter of law, the disposition of [Rivas’s] Pennsylvania
criminal charge constitutes a ‘conviction’ for immigration
purposes.” Frias-Camilo v. Att’y Gen., 826 F.3d 699, 702 n.4
(3d Cir. 2016) (citation omitted). Since the BIA’s opinion is
the “final order,” this Court’s review is typically confined to
the BIA’s opinion. Abdulai v. Ashcroft, 239 F.3d 542, 549
(3d Cir. 2001). Where, as here, the BIA expressly adopts the
IJ’s opinion, this Court also reviews that opinion to the extent
the BIA adopted it. Sandie v. Att’y Gen., 562 F.3d 246, 250
(3d Cir. 2009).




                               5
        Section 1227(a)(2)(B)(i) of the INA provides that
“[a]ny alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of a
State . . . relating to a controlled substance . . . is deportable.”
The issue here is whether the disposition of Rivas’s state
court criminal proceedings render him “convicted” for
purposes of the INA.2

                                 A

        A petitioner whose criminal conviction was vacated is
no longer “convicted” under the INA where the conviction
was vacated on the basis of a substantive or procedural defect
in the underlying criminal proceedings. In re Pickering, 23 I.
& N. Dec. 621, 624 (BIA 2003), rev’d on other grounds, 465
F.3d 263 (6th Cir. 2006). Conversely, where “a court vacates
a conviction for reasons unrelated to the merits of the
underlying criminal proceedings,” such as for rehabilitation
or to allow a petitioner to avoid the immigration effects of the
conviction, then the petitioner “remains ‘convicted’ for

       2
           The INA defines “conviction” as follows:

       (i) a judge or jury has found the alien guilty or
       the alien has entered a plea of guilty or nolo
       contendere 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.

8 U.S.C. § 1101(a)(48)(A).




                                 6
immigration purposes.” Id.; see also Cruz v. Att’y Gen., 452
F.3d 240, 242 (3d Cir. 2006) (concluding that Pickering
provides a reasonable interpretation of § 1227(a)(2)(B)(i));
Pinho v. Gonzales, 432 F.3d 193, 208-10 (3d Cir. 2005)
(same). A petitioner who seeks relief from removal bears the
burden of proving that his conviction was vacated. 8 C.F.R. §
1240.8(d); Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir.
2014).

       Rivas filed a motion for post-conviction relief based
on alleged ineffective assistance of trial counsel. After three
days of hearings, which included testimony from trial
counsel, the Commonwealth agreed to a settlement pursuant
to which Rivas’s convictions were vacated. Although Rivas
demonstrated that his convictions were vacated, the IJ and
BIA concluded that Rivas failed to show they were vacated
within the meaning of the immigration laws.

       To determine whether a vacated conviction is
nonetheless a conviction for immigration purposes, the IJ
must examine the state court record to identify the reasons
why the state court vacated the conviction. Pinho, 432 F.3d
at 215. To complete this task, the IJ “must look first to the
order [that vacated the conviction]. If the order explains the
court’s reasons for vacating the conviction, the [IJ]’s inquiry
must end there. If the order does not give a clear statement of
reasons, the [IJ] may look to the record before the court when
the order was issued. No other evidence of reasons may be
considered.” Id. Thus, the IJ may rely only on reasons
explicitly stated in the record and may not impute an
unexpressed motive for vacating a conviction. See id.; Cruz,
452 F.3d at 244, 248 (holding that the BIA could reasonably
determine that a conviction was vacated to allow a petitioner




                              7
to avoid immigration consequences where a state prosecutor’s
letter stipulating the terms of a settlement agreement
explicitly stated that the petitioner’s scheduled deportation
was a reason for the state’s support for vacating the
conviction). Put simply, “[w]e will not . . . permit[ ] . . .
speculation . . . about the secret motives of state judges and
prosecutors.” Pinho, 432 F.3d at 214-15.

        Here, both the IJ and the BIA opined that the state
court likely vacated Rivas’s convictions to allow him to avoid
the convictions’s immigration consequences. To support this
conclusion, the IJ relied on the facts that Rivas’s trial counsel
testified at the PCRA hearings that he did advise his client of
the immigration consequences of a potential conviction, and
that the state court denied Rivas’s PCRA petition. However,
these facts do not show that the state court vacated the
convictions to allow Rivas to avoid their immigration
consequences. Moreover, though trial counsel’s testimony
might have weakened Rivas’s ineffective-assistance-of-
counsel claim, the record fails to show that his counsel’s
alleged ineffectiveness was not the reason the convictions
were vacated. We know only that the application to vacate
was based on two ineffective-assistance-of-counsel claims
stemming from the alleged failure of Rivas’ counsel to advise
him of the immigration consequences of his convictions and
advice to forgo appealing his convictions, and that the
convictions were in fact vacated. See Pinho, 432 F.3d at 211-
13 (holding that where the record shows that the state did not
answer a pending ineffective-assistance-of-counsel claim
before agreeing to settlement, this supports the conclusion
that the settlement was reached as a result of the




                               8
constitutional claim).3 In addition, the IJ did not point to any
evidence undermining the conclusion that the Commonwealth
settled because of Rivas’s pending ineffectiveness claim with
respect to his trial counsel’s failure to advise him to appeal
the convictions. In fact, the IJ repeatedly asserted that the
state court record was not clear as to the reasons why the
prosecutor agreed to settle Rivas’s claim and why the court
vacated his convictions. Moreover, the BIA failed to
confine itself to the factual record. Beyond adopting the IJ’s
findings, it also quoted the following passage wherein the
state court addressed Rivas and discussed the vacatur of his
convictions:

       [B]ecause you know the consequences of what
       would have happened with the conviction that
       you had . . . . Everybody understands it, what
       would have happened over a possession
       conviction for PCP. You have been given an
       incredible opportunity here, and I think it’s the
       right opportunity, and I think it’s the right
       result, but you need to understand it is that

       3
        Contrary to the Government’s argument, Rumierz v.
Gonzales, 456 F.3d 31 (1st Cir. 2006), does not apply to
Rivas’s vacatur. There, because the petitioner’s motion for
post-conviction relief did not specify any substantive reasons
to vacate his conviction, the court held that the petitioner
could not show that his conviction was vacated on substantive
grounds where it was vacated pursuant to an agreement and
the record was otherwise silent as to the reason for the
vacatur. Id. In contrast, Rivas’s motion for post-conviction
relief did specify substantive grounds upon which he
challenged his convictions, and so Rumierz is inapplicable.




                               9
       opportunity. And if there [are] temptations, go
       the other way, criminal activity, drug use,
       anything, there’s no margin for error. If you
       want to be here with your family and you want
       to move forward in your life and do things, then
       you need to understand that.

App. I 5 (alterations, other than the ellipses, in original). The
BIA found that these statements showed that the court
vacated Rivas’s convictions to allow him to avoid the
resultant immigration consequences. In reaching this finding,
however, it speculated as to the unexpressed motives of the
state court—an analysis which we barred in Pinho. 432 F.3d
at 215. It is not plain in the above passage that the
consequences of convictions to which the court refers are
immigration consequences, as opposed to penal consequences
flowing from a conviction. Moreover, even if the passage
addresses the immigration consequences of the convictions, it
does not indicate the reasons why the court vacated the
convictions and does not show that the court vacated the
convictions because of those consequences. Thus, like the IJ,
the BIA erred in failing to restrict itself to the factual record
and impermissibly speculated about the “secret motives of
state judges and prosecutors.” Pinho, 432 F.3d at 215.

       In sum, Rivas met his burden to show that his
convictions were vacated for purposes of the immigration
laws, and the record does not show that Rivas’s convictions
were vacated to avoid their immigration consequences.

                               B




                               10
        The BIA also found that even if Rivas’s convictions
had been vacated on substantive grounds, he nonetheless
stood “convicted” for purposes of the immigration laws under
the terms of the deferred adjudication agreement.
Specifically, it found that since the state court’s order
vacating Rivas’s convictions was conditioned on his
stipulating to all of the state’s evidence against him for the
underlying convictions, and since the order imposed
conditions that restricted Rivas’s liberty, he stood “convicted”
for purposes of the INA. See 8 U.S.C. § 1101(a)(48)(A)
(stating that a petitioner is “convicted” under the INA if he
has “admitted sufficient facts to warrant a finding of guilt”
and “the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed”).
We need not decide whether the deferred adjudication
agreement could render Rivas “convicted” under the INA
since basing Rivas’s removal on his deferred adjudication
would violate his due process rights.4

      “It is well established that if an alien is a lawful
permanent resident of the United States and remains

       4
         Rivas argues that the DHS waived its right to rely on
the deferred adjudication as a basis for removal. Although he
casts this argument in terms of waiver, the real complaint is
that he did not receive notice that he might be removed on
this ground. Because his brief repeatedly states that the
Notice to Appear charged him as removable on the basis of
the Pennsylvania convictions and that by holding him
removable on the basis of the deferred adjudication
agreement the BIA “created an entirely new reason for
upholding the IJ’s decision,” he has in essence asserted that
his due process rights were violated. Petitioner Br. at 3.




                              11
physically present there . . . . [,] He may not be deprived of
his life, liberty or property without due process of law.”
Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953).
Essential to the due process rights of a noncitizen permanent
resident is that “before his expulsion[,] he is entitled to notice
of the nature of the charge and a hearing at least before an
executive or administrative tribunal.” Id. at 597; see also
United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004)
(citing Kwong Hai Chew and reiterating that an alien in
removal proceedings has a due process right to, among other
things, “notice of the charges against him”).

       The INA sets forth the notice that must be given to an
alien before removal proceedings can commence:
       In removal proceedings under section 1229a of
       this title, written notice . . . shall be given in
       person to the alien . . . specifying the following:
       (A) The nature of the proceedings against the
       alien.
       (B) The legal authority under which the
       proceedings are conducted.
       (C) The acts or conduct alleged to be in
       violation of law.
       (D) The charges against the alien and the
       statutory provisions alleged to have been
       violated.

8 U.S.C. § 1229(a)(1); see Choeum v. I.N.S., 129 F.3d
29, 38-39 (1st Cir. 1997) (holding that the due process
right to notice owed to a noncitizen permanent resident
charged with removability is coextensive with the
notice required by § 1229(a)(1)).




                               12
        The only Notice to Appear that DHS served
upon Rivas specified that he was charged with
removability on the basis of two factual predicates:
First, “[y]ou were, on September 26, 2013, convicted
in the Municipal Court at Philadelphia for the offense
of [i]ntentional possession of a controlled substance by
person not registered, to wit PCP, in violation of Pa.
C.S.A Title 35 Section 780-113 subsection A16.”
A.R. 571. Second, “[y]ou were, on September 26,
2013, convicted in the Municipal Court at Philadelphia
for the offense of [p]urchase/receipt of controlled
substance by unauthorized person, to wit: PCP, in
violation of Pa. C.S.A Title 35 Section 780-113
subsection A19.” A.R. 571. The Government never
lodged additional immigration charges against Rivas.
See 8 C.F.R. § 1240.10(e) (“At any time during the
proceeding, additional or substituted charges of
inadmissibility and/or deportability and/or factual
allegations may be lodged by the Service in writing.”).
As a result, Rivas never received notice charging him
as removable on the basis of the terms of the 2015
deferred adjudication agreement, entered almost two
years after the convictions identified in the Notice to
Appear.

       Consequently, the BIA’s finding that Rivas’s
motion to terminate removal proceedings could be
denied based on the deferred adjudication contravenes
§ 1229(a)(1)(c)’s requirement that the alien be given
notice of “[t]he acts or conduct alleged to be in
violation of law.” To remove Rivas on the basis of a
deferred adjudication in 2015 would base his removal
on an entirely different factual ground from that set




                              13
forth in the Notice to Appear and would violate
Rivas’s due process rights to notice of the bases for his
removal.5

                              III

       For the foregoing reasons, we will grant Rivas’s
petition for review.




       5
         If the immigration authorities wish to pursue Rivas’s
removal based on an assertion that he stands “convicted” of a
controlled substance offense as a result of the terms of his
deferred adjudication, then they can initiate removal
proceedings anew by serving notice to Rivas stating the
grounds upon which he is charged with removability.
Duhaney v. Att’y Gen., 621 F.3d 340, 349 (3d Cir. 2010)
(“Although there are common elements of fact between the
two removal proceedings, the critical acts and the necessary
documentation were different . . . . Accordingly, we hold that
the doctrine of res judicata did not bar the Government from
lodging additional charges of removability after Duhaney's
2000 conviction was vacated.”). Nothing herein constitutes a
view as to whether such proceedings should be commenced
or would succeed.




                              14
