In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3158

Jose E. Sandoval,

Petitioner,

v.

Immigration and Naturalization Service,

Respondent.



Petition for Review of an Order of
the Board of Immigration Appeals
No. A42 341 246.


Argued September 27, 2000--Decided February 12, 2001



      Before Posner, Coffey, and Kanne, Circuit Judges.

      Kanne, Circuit Judge. Jose Sandoval, petitioner,
entered the United States as a permanent resident
on July 31, 1990. In December 1991 he was charged
by information filed in the Circuit Court of Cook
County, Illinois, with possession of more than
thirty but less than 500 grams of cannabis. See
Ill. Rev. Stat. ch. 56 , para. 704(d) (1991), now
codified as 720 Ill. Comp. Stat. Ann. 550/4 (West
Supp. 2000)./1 Following his entry of a plea of
guilty to the violation of sec. 704(d), Sandoval
was sentenced to a period of two years probation.


      On the basis of his drug conviction, the
Immigration and Naturalization Service ("the
INS") began deportation proceedings against
Sandoval in April 1992. In response to the threat
of deportation, Sandoval promptly filed a post-
conviction motion, pursuant to the Illinois Post-
Conviction Hearing Act ("the Act"). Ill. Rev. Stat.
ch. 38, para. 122 et seq. (1991), now codified as
725 Ill. Comp. Stat. Ann. 5/122-1 (West Supp. 2000).
The Act provides a remedy to state criminal
defendants claiming substantial violations of
their federal or state constitutional rights by
allowing collateral attack on a judgment of
conviction. See People v. Towns, 696 N.E.2d 1128,
1133 (Ill. 1998). In his post-conviction motion,
Sandoval alleged that he had entered a guilty
plea on advice of counsel, and that counsel had
advised him not to worry about his status as a
resident alien. He further asserted that he never
would have entered the plea if he had known that
it would subject him to deportation. "It is
counsel’s responsibility, and not the court’s, to
advise an accused of a collateral consequence of
a plea of guilty; the consequence of deportation
has been held to be collateral." People v.
Correa, 485 N.E.2d 307, 310 (Ill. 1985). Under
Illinois law, if a defendant enters a plea of
guilty in reasonable reliance upon the erroneous
advice of counsel that the defendant’s plea would
have no collateral deportation consequence,
reliance on this misleading advice can render the
defendant’s plea involuntary. See People v.
Correa, 485 N.E.2d 307, 309-12 (Ill. 1985); see
also People v. Luna, 570 N.E.2d 404, 406-07 (Ill.
App. Ct. 1991) (holding that post-conviction
petition, which alleged that counsel failed to
advise alien that a felony conviction could
result in deportation, was sufficient to state a
claim for ineffective assistance of counsel).

      The Illinois state court judge responded to
Sandoval’s post-conviction motion on November 30,
1992, by entering a modified order of twenty-four
months of first offender probation, pursuant to
Chapter 56-1/2, section 710 of the Illinois
Revised Statutes./2 Ill. Rev. Stat. ch. 56 , para.
710 (1991), now codified as 720 Ill. Comp. Stat. Ann.
550/10 (West Supp. 2000). A court may only impose
probation under section 710 if the individual is
a first time offender who has pleaded guilty to
or has been found guilty of the misdemeanor
offenses of possession of marijuana under section
704(a), possession of not more than 2.5 grams of
marijuana; section 704(b), possession of more
than 2.5 grams but less than ten grams of
marijuana; or section 704(c), possession of more
than ten grams but not more than thirty grams of
marijuana. The section 710 probation given to
Sandoval is not available to defendants convicted
under 704(d)--the felony offense of possession of
greater than thirty but less than 500 grams of
marijuana--the offense for which Sandoval was
originally convicted.

      After the November 30th order sentencing him to
section 710 probation, Sandoval’s deportation
proceeding resumed. The Immigration Judge
acknowledged that Sandoval would not be
deportable if his conviction was for possession
of thirty grams or less of marijuana, but he
found that Sandoval bore the burden of proving
this factual circumstance. Therefore, the judge
was of the opinion that, because Sandoval had
provided no reason to believe that the charging
information referenced in the original statement
of conviction was not accurate, Sandoval had been
convicted of possession of more than thirty
grams. The Immigration Judge also found that
Sandoval’s sentence to first offender probation
was not the state counterpart of the Federal
First Offender Act, and declined Sandoval relief
under that statute. See 18 U.S.C. sec. 3607.
Further, he expressed his view that the Illinois
state court judge had modified Sandoval’s
sentence solely to avoid the consequences of the
immigration law, and that, even if the
modification was the state counterpart of the
Federal First Offender Act, it was not effective
for purposes of federal immigration law.

      On appeal to the Board of Immigration Appeals
("the Board"), Sandoval challenged each of these
conclusions. First, he argued that first offender
probation under section 710 is not a conviction
for immigration purposes. Second, Sandoval
asserted that first offender probation is
comparable to a disposition under the Federal
First Offender Act. Third, he contended that the
modification order of the Illinois court was not
ineffective, under Board precedent. Finally, he
argued that the Illinois court had vacated his
earlier conviction under 704(d), and entered a
new conviction under 704(a), (b), or (c); thus,
since he had to have been convicted of possessing
thirty grams or less of marijuana, he was not
deportable as charged in the order to show cause.
See 8 U.S.C. sec. 1251(a)(2)(B)(i) (originally
enacted as Immigration and Nationality Act (INA),
ch. 477, sec. 241(a)(2)(B)(i), 66 Stat. 163)
(current version at 8 U.S.C. sec.
1227(a)(2)(B)(i))./3 The Board dismissed
Sandoval’s appeal through a per curiam opinion
issued in July 1999, rejecting his first two
arguments. It determined that the enactment of a
federal statute defining "conviction" for
immigration purposes precluded the availability
of federal first offender treatment./4 See 8
U.S.C. sec. 1101(a)(48)(A). The opinion did not
address Sandoval’s assertion that he was not
deportable because he was convicted of possession
of thirty grams or less of marijuana.

      In this appeal, Sandoval alleges that the INS
did not carry its burden of proving
deportability, and that he does not have a
conviction that renders him deportable under
section 241(a)(2)(B)(i) of the INA. See 8 U.S.C.
sec. 1251(a)(2) (B)(i) (current version at 8
U.S.C. sec. 1227(a)(2)(B)(i)).

I.   Analysis
A.   Jurisdiction

      Under   the transitional rules of the Illegal
Immigration   Reform and Immigrant Responsibility
Act of 1996   ("IIRIRA"), when a final order of
deportation   is entered "there shall be no appeal
permitted in the case of an alien who is . . .
deportable by reason of having committed a
[controlled substance] offense covered in . . .
the Immigration and Nationality Act." IIRIRA,
sec. 309(c)(4)(G), Pub. L. No. 104-208, 110 Stat.
3009-625 (Sept. 30, 1996), set out at 8 U.S.C.
sec. 1101, Historical and Statutory Notes.
Notwithstanding this restriction, courts do have
jurisdiction to review whether the alien was
convicted of a criminal offense that justifies
deportation. See Wedderburn v. INS, 215 F.3d 795,
797 (7th Cir. 2000), petition for cert. filed, 69
U.S.L.W. 3409 (U.S. Nov. 29, 2000) (No. 00-875);
see also Jideonwo v. INS, 224 F.3d 692, 696 (7th
Cir. 2000); Xiong v. INS, 173 F.3d 601, 604 (7th
Cir. 1999). This limited review enables "judicial
correction of bizarre miscarriages of justice."
LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.
1998). Therefore, we must determine whether
Sandoval was convicted of a controlled substance
offense that would justify deportation under the
INA.

B.   Deportability Under Section 241

      The immigration law in effect at the time the
INS instituted deportation proceedings stated:
"Any 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 . . . , other than a single
offense involving possession for one’s own use of
30 grams or less of marijuana, is deportable." 8
U.S.C. sec. 1251(a)(2)(B)(i) (current version at
8 U.S.C. sec. 1227(a)(2)(B)(i)). "The term
’conviction’ means, with respect to an alien, a
formal judgment of guilt of the alien entered by
a court . . . ." 8 U.S.C. sec. 1101(a)(48)(A). If
"adjudication of guilt has been withheld," then
an alien is considered convicted "where (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. sec. 1101(a)(48)(A)(i), (ii).

      Sandoval’s original conviction for possession of
more than thirty grams would have rendered him
deportable under section 241(a)(2)(B)(i) of the
INA. His modified sentence, however, would only
be appropriate if the judge had vacated the
original conviction and entered a new conviction
for possession of thirty grams or less of
marijuana. Lack of a court order vacating the
original conviction has left the parties
disputing the effect of the modified sentence.
Sandoval argues that it was a legal modification
under Illinois law, and that the modification has
to mean that he was convicted of possession of
thirty grams or less of marijuana, which is not
a conviction for immigration purposes. The INS
argues that the conviction under 704(d) remains
a conviction for immigration purposes and that
there is substantial evidence to support the
finding that Sandoval was convicted of possession
of more than thirty grams. The insufficiency of
the state court record is, of course, the heart
of the problem.

      It is the duty of the INS to establish the
facts supporting deportability "by clear,
unequivocal and convincing evidence." Woodby v.
INS, 385 U.S. 276, 277, 286, 87 S. Ct. 483, 17 L.
Ed. 2d 362 (1966); Dashto v. INS, 59 F.3d 697,
701 (7th Cir. 1995). In the instant case, the
Immigration Judge incorrectly placed the burden
of proof on the petitioner. The Immigration Judge
concluded that Sandoval was deportable under
section 241, in part because Sandoval had not
shown that the charging information and the
original statement of conviction were inaccurate.
The Board did not address this last finding of
the Immigration Judge. "When the BIA summarily
adopts an IJ’s decision, we review the IJ’s
analysis as if it were the Board’s." Mousa v.
INA, 223 F.3d 425, 428 (7th Cir. 2000) (citing
Lwin v. INS, 144 F.3d 505, 508-09 (7th Cir.
1998)).
      We thus examine whether the INS carried its
burden of proving that Sandoval is deportable
under section 241. In order to show that
Sandoval’s original conviction for possessing
more than thirty grams of marijuana remained in
effect, the INS could have shown 1) that the
Illinois judge exceeded his authority under state
law, thus rendering the modification ineffective,
or 2) that the sentence modification was legal
but not effective for purposes of federal
immigration law. We find that the INS did not
establish either of these factual situations by
clear, unequivocal, and convincing evidence.

1.   The Legality of the Sentence Modification

      To demonstrate to the Immigration Judge that
Sandoval fell within the category of deportable
aliens, the INS relied on the charging
information and the original statement of
conviction. The subsequent events in state court,
however, should have been taken into account.
Sandoval’s motion under the Illinois Post-
Conviction Act constituted a collateral attack,
see People v. Towns, 696 N.E.2d 1128, 1133 (Ill.
1998), which is defined as an "attack on a
judgment . . . whose very purpose is to impeach
or overturn the judgment." Black’s Law Dictionary 261
(6th ed. 1990). The involuntary entering of a
guilty plea that results from the ineffective
assistance of counsel is a constitutional
violation that merits attention under the Act.
See People v. Correa, 485 N.E.2d 307, 309-12
(Ill. 1985); People v. Luna, 570 N.E.2d 404, 406-
07 (Ill. App. Ct. 1991). When a court finds that
a motion under the Act is meritorious, the court
is authorized to "enter an appropriate order with
respect to the judgment or sentence in the former
proceedings and such supplemental orders . . . as
may be necessary and proper." Ill. Rev. Stat. ch.
38, para. 122-6 (1991), now codified as 725 Ill.
Comp. Stat. Ann. 5/122-6 (West 1992). The Illinois
judge was thus acting under authority of state
law when he granted Sandoval’s motion for post-
conviction relief and modified Sandoval’s
sentence.

      The INS argues that the judge did not vacate
Sandoval’s conviction, and therefore Sandoval
remained convicted of possession of more than
thirty grams of marijuana. If we accept this
assertion, we would have to conclude that the
state court judge violated Illinois criminal
procedure when he gave Sandoval probation under
section 710. In other words, if Sandoval’s
original conviction under section 704(d) had not
been vacated, and the underlying conviction
remained, then the judge could not legally have
sentenced Sandoval to section 710 probation. As
noted earlier, that sentence is available only
when the defendant was convicted under section
704(a), (b), or (c), or other provisions not
relevant to this case. The INS bears the burden
of proving that the judge was acting contrary to
Illinois law. See Matter of Kaneda, 16 I.&N. Dec.
at 680.

      Rather than proving that the judge acted
illegally, however, the INS maintained that it
was possible for the judge to have legally
modified Sandoval’s sentence and for Sandoval to
still fall within the category of aliens
deportable under section 241(a)(2)(B)(i). This
would be the case, the INS alleged, if the
conviction of December 1991 was Sandoval’s second
conviction for possession of cannabis. Under
704(c), "if any offense under this subsection (c)
is a subsequent offense, the offender shall be
guilty of a Class 4 felony." Ill. Rev. Stat. ch.
56 , para. 704(c) (1991), now codified as 720 Ill.
Comp. Stat. Ann. 550/4(c) (West Supp. 2000). Thus,
the judge could have downgraded the sentence from
704(d) to 704(c), yet if it was Sandoval’s second
offense, he would not be saved from deportation
because he had more than "a single offense
involving possession for one’s own use of 30
grams or less of marijuana." 8 U.S.C. sec.
1251(a)(2)(B)(i) (current version at 8 U.S.C.
sec. 1227(a)(2)(B)(i)). The INS alleges further
that a misdemeanor requires a sentence of less
than one year, and because the judge sentenced
Sandoval to two years probation, Sandoval must
have been convicted of a felony. These arguments
appear insufficient to carry the INS’s burden.

      First, there is nothing in the record to
indicate that Sandoval has a prior conviction.
The logical assumption from this record is that
none exists, and the INS presented no evidence to
the contrary. We will not assume facts that have
no support in the record to attempt to help the
INS satisfy its burden. Second, section 710
probation is only available to first time
offenders. See Ill. Rev. Stat. ch. 56 , para. 710(a),
now codified as 720 Ill. Comp. Stat. Ann. 550/10(a)
(West Supp. 2000). If Sandoval had "previously
been convicted of, or placed on probation or
court supervision for, any offense . . . relating
to cannabis" he would not have been eligible for
710 probation. Id. Thus, the judge’s modification
of the sentence would still have been illegal
under Illinois law. Third, the INS’s assertion
that a misdemeanor requires a sentence of less
than one year is incorrect. A misdemeanor
conviction requires that any imprisonment be less
than one year, see Ill. Rev. Stat. ch. 38, para.
1005-1-14 (1991), now codified as 730 Ill. Comp.
Stat. Ann. 5/5-1-14 (West 1997), but a judge is
authorized to sentence a defendant to probation
for up to two years. See id. para. 1005-6-
2(b)(3), now codified as 730 Ill. Comp. Stat. Ann.
5/5-6-2 (West Supp. 2000). The INS did not prove
that the Illinois judge exceeded his authority
under state law when he modified Sandoval’s
sentence. We now turn to the argument that
Sandoval’s original conviction remains a
conviction for immigration purposes.

2. The Effect of the Sentence Modification
on the Operation of the INA

      The INS argues that Sandoval’s original
conviction remains a conviction for immigration
purposes because a vacation of that conviction
would constitute action under a state
rehabilitative scheme. The BIA has held that
state rehabilitative statutes, which allow a
state court to expunge, dismiss, cancel, vacate,
discharge or otherwise remove a guilty plea or
other record of guilt or conviction, "are of no
effect in determining whether an alien is
considered convicted for immigration purposes."
In re Roldan-Santoyo, Interim Decision 3377 (BIA
1999), removal orders vacated sub nom. Lujan-
Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
Under the reasoning in Roldan-Santoyo, even if a
state court expunges a conviction, or withholds
adjudication of guilt unless parole is violated,
aliens who receive the benefit of these
rehabilitation schemes are still considered
convicted for the purpose of federal immigration
law. See id. The INS concludes this modification
was part of a scheme of rehabilitation, and thus
the original felony conviction remains a
conviction for immigration purposes. The strength
of its position has been called into question by
the Ninth Circuit’s rejection of much of Roldan-
Santoyo’s reasoning. Yet even if the Roldan-
Santoyo decision stood undisturbed, it would not
lead us to conclude that Sandoval is deportable.

      The instant case is distinguishable from Roldan-
Santoyo because it does not involve a state
rehabilitative scheme. Adjudication of guilt was
not withheld, nor was an alien’s criminal record
cleared; rather, Sandoval was convicted of an
offense and sentenced, and then received a
modified sentence. Though the insufficiency of
the state court record has led to some confusion,
the INS has not provided any convincing reason to
ignore the most logical conclusion, which is that
the Illinois judge must have vacated the original
conviction and modified Sandoval’s sentence
accordingly. The BIA has found that a conviction
vacated pursuant to this type of post-conviction
scheme does not constitute a conviction for
immigration purposes within the meaning of
section 1101(a)(48)(A) of the Immigration and
Nationality Act. See In re Rodriguez-Ruiz,
Interim Decision 3436 (BIA 2000) (distinguishing
the NY criminal procedure law on post judgment
motions from the statutes implicated under the
Roldan-Santoyo decision). Further, in
Roldan-Santoyo, the BIA did not address the
situation "where the alien has had his or her
conviction vacated by a state court on . . .
grounds relating to a violation of a fundamental
statutory or constitutional right in the
underlying criminal proceedings." Interim
Decision 3377 (BIA 1999). Because the very
purpose of the Illinois Post-Conviction Hearing
Act is to remedy constitutional violations in the
underlying criminal proceedings, the Illinois
scheme falls outside the category of statutes
discussed in Roldan-Santoyo. See id.

      The INS also alleges that the modification was
entered solely for immigration purposes, and is
thus ineffective. This allegation is unfounded.
The judge’s modification was in response to
Sandoval’s properly filed motion stating a
cognizable claim of ineffective assistance of
counsel. That Sandoval may have filed his motion
in response to the threat of deportation is
irrelevant. Further, even if the state court
judge’s decision to modify Sandoval’s sentence
was motivated by the consequences of the federal
immigration law, that fact would not render the
modification ineffective for immigration
purposes. See Matter of Kaneda, 16 I.&N. Dec. 677
(BIA 1979); Matter of O’Sullivan, 10 I.&N. Dec.
320, Interim Decision 1294 (BIA 1963).

II.   Conclusion

      We conclude that the INS did not prove by
clear, unequivocal, and convincing evidence that
Sandoval was convicted of possession of more than
thirty grams of marijuana. The INS did not prove
that the Illinois state court judge exceeded his
legal authority when he modified Sandoval’s
sentence nor did it prove that the modification
was ineffective for immigration purposes. We thus
hold that the Board and the Immigration Judge
erred in finding that Sandoval was deportable as
charged under Section 241(a)(2)(B)(i) of the
Immigration and Nationality Act. For these and
the forgoing reasons, we REMAND this case to the
Board of Immigration Appeals for entry of an
order terminating deportation proceedings.

/1 In 1992, section 704 of the Cannabis Control Act
read as follows:

704. Possession of cannabis--Violations--
Punishment

      sec.4. It is unlawful for any person knowingly
to possess cannabis. Any person who violates this
section with respect to:

      (a)    not more than 2.5 grams of any substance
containing cannabis is guilty of a Class C
misdemeanor;

      (b)   more than 2.5 grams but not more than 10
grams of any substance containing cannabis is
guilty of a Class B misdemeanor;

      (c)   more than 10 grams but not more than 30
grams of any substance containing cannabis is
guilty of a Class A misdemeanor; provided, that
if any offense under this subsection (c) is a
subsequent offense, the offender shall be guilty
of a Class 4 felony;

      (d)   more than 30 grams but not more than 500
grams of any substance containing cannabis is
guilty of a Class 4 felony; provided that if any
offense under this subsection (d) is a subsequent
offense, the offender shall be guilty of a Class
3 felony;

       . . . .

Ill. Rev. Stat. ch. 56 , para. 704 (1991), now
codified as 720 Ill. Comp. Stat. Ann. 550/4 (West
Supp. 2000).

/2 In 1992, section 710(a) of the Cannabis Control
Act read as follows:

710.   First offenders--Probation

      sec.10. (a) Whenever any person who has not
previously been convicted of, or placed on
probation or court supervision for, any offense
under this Act or any law of the United States or
of any State relating to cannabis, or controlled
substances as defined in the Illinois Controlled
Substances Act, pleads guilty to or is found
guilty of violating sections 4(a), 4(b), [or]
4(c), . . . of this Act, the court may, without
entering a judgment and with the consent of such
person, sentence him to probation.

Ill. Rev. Stat. ch. 56 , para. 710(a) (1991), now
codified as 720 Ill. Comp. Stat. Ann. 550/10(a) (West
Supp. 2000).

/3 For consistency with the prior proceedings we
refer to INA sec. 241(a)(2)(B)(i) and 8 U.S.C.
sec. 1251(a)(2)(B)(i) rather than the current
codified versions.

/4 The Board relied on one of its previous
decisions, In re Roldan-Santoyo, Interim Decision
3377 (BIA 1999), to conclude that the statutory
definition of "conviction" precluded the
availability of federal first offender treatment.
See id. After the Board issued its decision in
the instant case, however, the Ninth Circuit
reversed certain portions of Roldan-Santoyo, and
vacated the standing deportation orders. See
Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000). As Sandoval did not ask us to review the
Board’s findings concerning the Federal First
Offender Act, we will not address the issue.
