                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0528n.06

                                           No. 09-3675                                   FILED
                                                                                     Aug 18, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


AHMAD KHALIL BARAKAT,                                    )
                                                         )
       Petitioner,                                       )        ON PETITION FOR REVIEW
                                                         )        OF AN ORDER OF THE
               v.                                        )        BOARD OF IMMIGRATION
                                                         )        APPEALS
ERIC H. HOLDER, JR., Attorney General,                   )
                                                         )
       Respondent.                                       )
                                                         )



BEFORE: BOGGS, ROGERS, and COOK, Circuit Judges.

       ROGERS, Circuit Judge. Ahmad Khalil Barakat, a native and citizen of Lebanon, petitions

this court for review of the Board of Immigration Appeals’ denial of his motion to terminate removal

proceedings. Barakat and most of his immediate family members entered the United States on

immigrant visas in 1992 and then became lawful permanent residents. Ten years later, the

Government charged Barakat with removability on the basis of an intervening state conviction of a

controlled substance offense. An Immigration Judge found that the Government had proved

Barakat’s removability with clear and convincing evidence and then denied Barakat’s requests for

relief from removal. Barakat appealed the IJ’s adverse decision to the BIA. While his appeal to the

BIA was pending, however, Barakat moved the state court to withdraw his guilty plea. After the

state court granted the motion and dismissed Barakat’s ten-year-old criminal case, he moved the BIA

to terminate his removal proceedings. Because the BIA improperly put the burden on Barakat to
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prove that the state court’s vacatur of his conviction was not for rehabilitative or immigration

reasons, and because the Government failed to bear its burden of proving that Barakat’s conviction

was vacated for rehabilitative or immigration reasons, we grant this petition for review.

        Barakat entered the United States legally in September 1992 after his brother, a United States

citizen, petitioned for a visa on Barakat’s behalf. See 8 U.S.C. § 1153(a)(4); 8 C.F.R. § 204.2(g)(1).

Approximately five years later, Barakat pled guilty in the Recorder’s Court in the City of Detroit to

possession of less than twenty-five grams of cocaine in violation of Mich. Comp. Laws

§ 333.7403(2)(a)(v). The state court sentenced him to one year of probation pursuant to Mich.

Comp. Laws § 333.7411, which allows a state court, “without entering a judgment of guilt,” to

impose a sentence of probation upon a first-time offender guilty of one of a number of controlled

substance offenses. Section 7411 provides that,

        [u]pon fulfillment of the terms and conditions [of probation], the court shall
        discharge the individual and dismiss the proceedings. Discharge and dismissal under
        this section shall be without adjudication of guilt and . . . is not a conviction . . . for
        purposes of disqualifications or disabilities imposed by law upon conviction of a
        crime . . . .

Id. § 333.7411(1). Thus, after Barakat completed his probation, the state court dismissed the

proceedings against him.

        In September 2002, the Government filed a Notice to Appear charging Barakat with

removability pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) as an “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.” In a proceeding before an IJ, Barakat conceded the following factual allegations

supporting his removability: (1) that he is “not a citizen or national of the United States”; (2) that

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he is “a native of Lebanon and a citizen of Lebanon”; and (3) that he was “admitted to the United

States at New York, New York[,] on or about September 19, 1992[,] as an Immigrant (F4-1).”

However, Barakat denied the Government’s fourth factual allegation, i.e., that he had been convicted

of a state controlled substance offense in December 1997, and therefore denied that he was

removable. Barakat’s counsel argued that, because Barakat’s “case was handled under” Mich.

Comp. Laws § 333.7411, it “was dismissed without an adjudication [of] guilt.” The Government,

in turn, submitted as evidence the state court record of conviction. The IJ ultimately concluded that,

notwithstanding the state court’s dismissal of Barakat’s criminal proceedings pursuant to Mich.

Comp. Laws § 333.7411, the conviction remained valid for immigration purposes and the

Government had proved removability with clear and convincing evidence.

       In the meantime, Barakat applied for withholding of removal, protection under the

Convention Against Torture, and voluntary departure. Following a hearing at which the IJ received

testimony from both Barakat and his son, the IJ determined that Barakat was not credible, denied his

requests for relief from removal, and ordered him removed to Lebanon. The BIA later affirmed these

rulings. Barakat does not challenge the adverse credibility finding or the denial of his requests for

relief from removal on his petition for review to this court.

       While Barakat’s appeal was pending before the BIA, he moved the Third Judicial Circuit

Court in Wayne County, Michigan, to withdraw his 1997 guilty plea. The state court granted his

motion and, on June 22, 2007, dismissed the criminal case against him with prejudice and “in best

interests of justice.” As a result of this change in the status of his criminal conviction, Barakat

moved the BIA to terminate his removal proceedings, arguing that his “conviction ha[d] been

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vacated for sound reason and not solely to avoid the consequences of an immigration order of

removal.” Barakat included with his motion certified copies of the state court’s order granting his

motion to withdraw his guilty plea and the order dismissing his criminal case.

       In opposing Barakat’s motion, the Government asserted that Barakat “must proffer evidence

to sustain [his] burden” of proving that his “conviction was not vacated solely for immigration

purposes.” The Government then argued that “the record sheds no light whatsoever on the reason”

for the state court’s vacatur of Barakat’s conviction. The Government therefore urged the BIA to

deny the motion.

       The BIA did just that. The BIA discussed and disposed of Barakat’s motion to terminate

removal proceedings in a single paragraph of its decision on the merits of his appeal:

       Following the Immigration Judge’s decision, [Barakat] obtained a dismissal of his
       criminal case, which was the underlying charge in his Notice to Appear. We find that
       [Barakat] failed to provide evidence from which it may be reasonably inferred that
       his motion to withdraw his guilty plea was granted on any recognized legal ground.
       On this record, the only reasonable inference that can be drawn is that the conviction
       was vacated for the sole purpose of relieving [Barakat] from his removal.

(citing Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007); other internal citations omitted). Barakat

now petitions for review of the BIA’s denial of his motion to terminate removal proceedings.

       Barakat appended to his reply brief in this court a copy of his “Motion to Set Aside Guilty

Plea and For New Trial,” allegedly filed in state court on June 12, 2007. Barakat’s motion to

withdraw his guilty plea was not submitted for the BIA’s consideration and is therefore not part of

the administrative record. Barakat subsequently moved this court to take judicial notice of the state

court filing and maintains that this court has the authority to do so pursuant to Federal Rule of


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Evidence 201(f). Barakat contends that his motion to withdraw his guilty plea “incontrovertibl[y]”

shows that he asserted grounds for a new trial that are “valid for immigration purposes.” He

emphasizes that his motion to withdraw his guilty plea is “accessible to the public” because it was

filed in state court and “was not subject to any sort of protective . . . or privacy order.” In opposing

Barakat’s motion to take judicial notice, the Government relies upon 8 U.S.C. § 1252(b)(4)(A),

which requires this court to decide petitions for review solely upon the administrative record.

        Although Barakat had initially asked this court to terminate his removal proceedings outright,

in the week before oral argument he moved this court for the “alternate relief of remand” in light of

the United States Supreme Court’s recent decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

The Government joins in requesting a remand “for [the BIA] to consider, in the first instance, the

effect of the Supreme Court’s decision in Padilla on [t]his case.”

        This court has jurisdiction to entertain Barakat’s petition for review to the extent that it

challenges the BIA’s assignment of the burden of proof. Pursuant to 8 U.S.C. § 1252(a)(2)(C),

“[n]otwithstanding any other provision of law (statutory or nonstatutory) . . . and except as provided

in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal offense covered in,” among other

statutory provisions, 8 U.S.C. § 1227(a)(2)(B)(i). Subparagraph (D) provides that “[n]othing in

subparagraph . . . (C), or in any other provision of this chapter (other than this section) which limits

or eliminates judicial review, shall be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review.” Id. § 1252(a)(2)(D). This court therefore lacks

jurisdiction to consider the final order of removal against Barakat, who was initially subject to

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removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), except to the extent that he seeks “review of

constitutional claims or questions of law.” Id. § 1252(a)(2)(C)-(D). Because this court has

previously characterized as a “question of law” whether the BIA “assigned to [the alien] the correct

burden of proof” in removal proceedings, Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006); see

also Nerghes v. Mukasey, 274 F. App’x 417, 422 (6th Cir. 2008), we have jurisdiction to decide the

burden-of-proof issue in this case.

        The BIA erred by requiring Barakat “to provide evidence from which it may be reasonably

inferred that his motion to withdraw his guilty plea was granted on any recognized legal ground.”

In Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), this court stated clearly “that the government

bears the burden of proving that a vacated conviction remains valid for immigration purposes.” Id.

at 269 n.4; see Al-Najar v. Mukasey, 515 F.3d 708, 715 n.4 (6th Cir. 2008). Indeed, although the

burden of production may shift during removal proceedings, the ultimate burden of persuasion

remains with the Government, see Pickering, 465 F.3d at 268-69, which must prove removability

with clear and convincing evidence, 8 U.S.C. § 1229a(c)(3)(A); see Pickering, 465 F.3d at 268 &

n.3. Accordingly, once the Government makes out a prima facie case of removability, the burden

shifts to the alien to produce evidence of his non-removability. Pickering, 465 F.3d at 268-69.

“[E]vidence that the conviction for which the government wishes to deport [the alien] has been

vacated by a court of competent jurisdiction . . . is sufficient to meet [this] burden . . . .” Id. at 269.

At that point, “the government must produce evidence of a conviction that remains valid for

immigration purposes.” Id. Whereas a “conviction vacated for rehabilitative or immigration reasons

remains valid,” a conviction “vacated because of procedural or substantive infirmities does not.”

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Id. at 266. For the Government to carry its ultimate burden, then, “the government must prove, with

clear and convincing evidence, that the [alien]’s conviction was quashed solely for rehabilitative

reasons or reasons related to his immigration status.” Id. at 269. At no time, however, does the alien

bear the burden of proving that his conviction was vacated on a “recognized legal ground.”

       Although the BIA cited Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007), as support for its

denial of Barakat’s motion to terminate removal proceedings, the BIA’s reliance on Sanusi was

misplaced. In Sanusi, the petitioner-alien was subject to removal because he had been “convicted

of a crime involving moral turpitude.”         Id. at 343 (citing 8 U.S.C. § 1227(a)(2)(A)(i)).

Approximately one year earlier, the alien had received a citation for property theft in violation of

state law. Id. Rather than appear in state court, the alien had simply paid a fine. Id. After the

Government charged the alien with removability, however, he petitioned the state court for a writ

of coram nobis, seeking to vacate his theft conviction. Id. The alien’s petition

       referenced the deportation proceedings, noted that he was subject to deportation
       action, and averred that “[t]he only basis for preventing this collateral consequence
       of deportation is through a vacation of the conviction.” Petitioner further asserted
       that he “was not advised on the citation that by paying the fine and avoiding a court
       appearance his guilty plea could or would result in drastic and severe immigration
       consequences, specifically deportation from the United States.”

Id. (internal citations omitted). The state court granted the writ and vacated the conviction but did

not explain the basis for its action. Id. at 344. The IJ and the BIA nonetheless concluded that the

vacated conviction remained valid for immigration purposes because the writ was granted to avoid

immigration hardship. Id. at 344-45. On petition for review, a panel of this court agreed,

distinguishing the earlier decision in Pickering: “[U]nlike the petitioner in Pickering, petitioner


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Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction”; rather, he

had “merely asked for mercy from the harsh immigration consequences of his conviction.” Id. at

347. A review of the alien’s petition for the writ and the state court’s docket entry granting the writ

“fail[ed] to provide the evidence from which it may be reasonably inferred that the writ of coram

nobis was granted on any recognized legal ground.” Id. As a result, and “[o]n this record, the only

reasonable inference that c[ould] be drawn [wa]s that the conviction was vacated for the sole purpose

of relieving Sanusi from deportation.” Id.

       In the instant case, the BIA relied upon the above-quoted language from Sanusi in putting

the burden on Barakat to prove that the state court had vacated his conviction on a “recognized legal

ground.” But this language from Sanusi does not mean that the burden of proof as to removability

is now on the alien instead of the Government. Rather, this language distinguishes Pickering and

explains that, in Sanusi, the Government had carried its burden by presenting circumstantial evidence

that the alien’s conviction had been vacated solely to avoid immigration consequences. See Al-

Najar, 515 F.3d at 716 (“In Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007), we distinguished

Pickering and held that the government had met its burden . . . .”). Sanusi therefore does not support

the BIA’s placing the burden of proof on Barakat.

       The Government, moreover, did not carry its burden in this case. Cf. id. at 715 n.4 (“[T]he

BIA appeared to improperly place the burden on the petitioner . . . . [D]espite the BIA’s error, we

hold that the government has met its burden in this case.”). Although the Government initially

proved that Barakat had been convicted of a controlled substance offense, Barakat subsequently



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produced evidence that a state court had vacated his conviction. The Government then failed to

prove that the conviction was vacated for rehabilitative or immigration reasons.

       The evidence in the administrative record is not conclusive as to why the state court vacated

Barakat’s conviction. The only evidence in the record on this point came from Barakat himself:

when he moved to terminate his removal proceedings, he submitted, as proof that the state court had

vacated his conviction, the order granting his motion to withdraw his guilty plea and the order

dismissing his criminal case. The order granting his motion to withdraw his guilty plea is a standard

form, with the blanks filled in by hand, and it lacks any explanation of the state court’s reasons for

granting the motion. The order of dismissal, also a standard form, indicates only that the state court

dismissed the criminal case with prejudice and “in best interests of justice.” These documents fail

to show, one way or the other, why the state court vacated Barakat’s conviction.

       Rather than putting forth evidence on this point, the Government insisted that Barakat had

the burden of proof, rationalizing that “[c]learly [he] is in the best position to demonstrate why the

case against [him] was dismissed almost ten years after the conviction.” The Government

acknowledged—indeed, even argued—before the BIA that “the record sheds no light whatsoever on

the reason” underlying the state court’s actions. Whatever policy arguments the Government might

make for shifting the burden of proof, the fact remains that in Pickering—a case decided more than

one year before the Government filed its response to Barakat’s motion to terminate removal

proceedings—we stated clearly “that the government bears the burden of proving that a vacated

conviction remains valid for immigration purposes.” 465 F.3d at 269 n.4. On the record in this case,



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there is no basis to infer that the state court vacated Barakat’s conviction for rehabilitative or

immigration reasons.

       The Government asserts that

       Pickering cannot stand for the proposition that the government fails to meet its
       burden to show that an alien’s conviction was vacated solely for rehabilitative or
       immigration purposes where the alien not only fails to provide any evidence that he
       raised or argued a colorable legal basis for the vacatur, but in fact withholds evidence
       presumably within his possession (here, Barakat’s motion to withdraw his guilty
       plea) that could shed light on the state court’s basis for vacating the conviction.

If an alien in removal proceedings must move all of the relevant documents into evidence, and then

must prove that he argued a colorable legal basis for vacating his conviction, it is not clear what

burden remains for the Government to bear. Nor is there any indication in the record that the

Government asked Barakat or the state court for a copy of his motion to withdraw his guilty plea,

let alone that Barakat “withheld” that motion from the Government. Indeed, Barakat has moved this

court to take judicial notice of that same motion.

       The Government also contends that this case is “akin to the circumstances in Sanusi, 474

F.3d 341, and Al-Najar, 515 F.3d 708.” The Government’s argument is unavailing, however,

because in each of those cases the alien’s state court filings were included as part of the

administrative record. See Sanusi, 474 F.3d at 343-44; Al-Najar, 515 F.3d at 712. Thus, in each of

those cases, there was a factual basis for the BIA to conclude that the alien’s conviction was vacated

for rehabilitative or immigration reasons. See Sanusi, 474 F.3d at 347; Al-Najar, 515 F.3d at 716.

But, as discussed, that is not the case here. Because the BIA improperly placed the burden of proof

on Barakat, and because the Government did not carry its burden in spite of the BIA’s error, we grant


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Barakat’s petition for review and remand to the BIA for consideration of his motion to terminate

removal proceedings using the correct burden of proof.1 See Tran, 447 F.3d at 943-44.

        As to Barakat’s motion to take judicial notice of his “Motion to Set Aside Guilty Plea and

for New Trial,” allegedly filed in state court, this court is statutorily required to “decide the petition

[for review] only on the administrative record on which the order of removal is based.” 8 U.S.C.

§ 1252(b)(4)(A). Even if this court could take judicial notice of Barakat’s motion to withdraw his

guilty plea, “the proper inquiry is whether we should take such notice in the first instance.” Khora

v. Gonzales, 172 F. App’x 634, 639 (6th Cir. 2006) (emphasis added). The question that ultimately

drives this case—whether the state court vacated Barakat’s conviction for rehabilitative or

immigration reasons—involves at least an element of fact. It would be improper for this court to

consider the effect of Barakat’s motion to withdraw his guilty plea on his removability without

“allow[ing] the BIA ‘the opportunity to address the matter in the first instance in light of its own

expertise.’” Id. (quoting INS v. Orlando Ventura, 537 U.S. 12, 17 (2002)). In any event, this court

lacks jurisdiction to consider factual issues on Barakat’s petition for review. See 8 U.S.C.

§ 1252(a)(2)(C)-(D). We therefore deny Barakat’s motion to take judicial notice.2 The BIA should


        1
          To the extent that Barakat raised as an issue on petition for review the BIA’s failure to
decide his case by a three-member panel, see Barakat’s Br. 11-12, he has waived that argument by
failing to develop it further. “‘Issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.’” El-Moussa v. Holder, 569 F.3d 250, 257
(6th Cir. 2009) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)).
        2
         The Government moved to strike Barakat’s reply brief “to the extent the argument therein
relies on” his motion to withdraw his guilty plea. In light of our disposition of this case, we need
not address the Government’s motion to strike; we therefore deny that motion as moot. See
Campbell v. BNSF Ry. Co., 600 F.3d 667, 677 n.7 (6th Cir. 2010).

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consider in the first instance whether to take administrative notice of Barakat’s motion to withdraw

his guilty plea, see 8 C.F.R. § 1003.1(d)(3)(iv), and whether remand to the IJ is appropriate.

       We grant Barakat’s petition for review, vacate the decision below, and remand to the BIA

for further proceedings consistent with this opinion. On remand, the BIA may also consider whether

the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), has any effect on the

outcome of this case.




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