                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0369a.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                                       Petitioner, -
 CHRISTOPHER PICKERING,
                                                    -
                                                    -
                                                    -
                                                        No. 03-3928
          v.
                                                    ,
                                                     >
 ALBERTO GONZALES, Attorney General,                -
                                     Respondent. -
                                                    -
                                                    -
                                                    -
                                                   N
                         On Petition for Review of a Decision
                         by the Board of Immigration Appeals.
                               No. A70 539 319 Detroit.
                                         Argued: December 1, 2004
                                   Decided and Filed: October 4, 2006
    Before: DAUGHTREY and GILMAN, Circuit Judges, and RICE, Senior District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Russell R. Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, Troy, Michigan, for
Petitioner. Greg D. Mack, UNITED STATES DEPARTMENT OF JUSTICE,, Washington, D.C.,
for Respondent. ON BRIEF: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES,
Troy, Michigan, for Petitioner. Greg D. Mack, Donald Keener, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
                                         _______________________
                                           AMENDED OPINION
                                         _______________________
       WALTER H. RICE, Senior District Judge. Petitioner Christopher Pickering seeks review
of a Board of Immigration Appeals (“BIA”) order permanently barring him from the United States,
based on a Canadian conviction for a drug offense, for which he was later pardoned pursuant to
Canadian law, and which was later quashed by a Canadian appellate court.
        Finding prejudicial error, we grant the Petition for Review.

        *
           The Honorable Walter H. Rice, Senior United States District Court Judge for the Southern District of Ohio,
sitting by designation.


                                                         1
No. 03-3928              Pickering v. Gonzales                                                              Page 2


        Petitioner is a native and citizen of Canada. On November 6, 1980, he was indicted in
Ontario, Canada, for the unlawful possession of Lysergic Acid Diethylamide (“LSD”). He pled
guilty. His sentence required him to pay a fine of $300.00 (Canadian) or, in default of payment, to
serve 30 days in custody.
        In 1991, Petitioner entered the United States as a non-immigrant, intra-company transferee.
His wife and their two children followed him         as derivative non-immigrants. In 1992, the
Immigration and Naturalization Service (“INS”)1 approved a Petition for Alien Worker (Form I-140)
filed on behalf of Petitioner’s wife by her employer. Mrs. Pickering later applied for adjustment of
status based on the approved I-140, and Petitioner and their children filed derivative adjustment of
status applications based on their relationship to Mrs. Pickering. On June 17, 1993, the INS
approved Mrs. Pickering and the children's adjustment of status applications, making them lawful
permanent residents.
        On February 28, 1996, Petitioner received a pardon of his LSD conviction. Notwithstanding
the pardon, his attempt to adjust his status was denied. On May 7, 1997, Petitioner filed a notice of
appeal, with the Canadian court, seeking to have that conviction quashed. In a judgment dated
June 20, 1997, the Canadian court quashed the Petitioner’s 1980 conviction for unlawful possession
of LSD. On August 21, 1998, the Petitioner’s application for adjustment of status was again denied
and removal proceedings were initiated, with the Immigration Judge finding the Petitioner to be
removable on the basis of his LSD conviction. In his decision, the Immigration Judge declined to
give effect to the Canadian court’s order quashing the conviction, concluding that the court’s action
was solely for rehabilitative purposes, entered in order to avoid adverse immigration consequences
and to allow the Petitioner to live permanently in the United States. The Petitioner appealed the
Immigration Judge’s decision to the BIA, and the BIA issued a published opinion denying
Petitioner’s appeal. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
       The BIA had jurisdiction, pursuant to 8 C.F.R. § 1003.1(b), to review the decision of the
Immigration Judge who ordered Petitioner’s removal. The BIA decision is a final agency decision.
8 C.F.R. § 1241.1. The Petitioner’s Petition for Review was filed in a timely manner pursuant to
8 U.S.C. § 1252(b)(1). This Court has jurisdiction to review the BIA decision pursuant to 8 U.S.C.
§ 1252(a).
        We review questions of law raised in removal proceedings de novo. Huicochea-Gomez v.
INS, 237 F.3d 696, 699 (6th Cir. 2001). However, in order to reverse a BIA factual determination,
the evidence must compel a contrary conclusion. Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001).
        Pickering first argues that the BIA’s decision fails as a matter of law. However, a review
of that decision and the applicable case law reveals that the BIA correctly interpreted the law by
holding that, when a court vacates an alien’s conviction for reasons solely related to rehabilitation
or to avoid adverse immigration hardships, rather than on the basis of a procedural or substantive
defect in the underlying criminal proceedings, the conviction is not eliminated for immigration
purposes. Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003). This interpretation of the law
is consistent with that of other circuits and with our own interpretation. A conviction vacated for
rehabilitative or immigration reasons remains valid for immigration     purposes, while one vacated
because of procedural or substantive infirmities does not.2 See Zaitona v. INS, 9 F.3d 432 (6th Cir.

        1
        The functions of the Immigration and Naturalization Service have been transferred to the Department of
Homeland Security, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
        2
          A conviction is vacated for rehabilitative purposes where state law provides a means for the trial court to
enable a Defendant to avoid certain continuing effects under state law from that conviction. See Murillo-Espinoza v.
INS, 261 F.3d 771 (9th Cir. 2001); see also United States v. Campbell, 167 F.3d 94 (2nd Cir. 1999).
No. 03-3928           Pickering v. Gonzales                                                     Page 3


1993); see also Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208
F.3d 299 (1st Cir. 2000); Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001); but compare Renteria-
Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (holding that all convictions remain valid for
immigration purposes) with Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004) (following precedent
in Renteria-Gonzalez, while criticizing it as overbroad).
        The BIA upheld the Immigration Judge’s order that Petitioner was removable based on the
quashed drug conviction, ruling that the Canadian court had quashed the Petitioner’s drug conviction
solely for immigration purposes, in other words, to avoid adverse immigration consequences.
Matter of Pickering, 23 I&N Dec. at 625, J.A. at 38. In determining that the Petitioner’s conviction
remained valid for immigration purposes, despite the order of the Canadian court quashing the
conviction, the BIA relied on “the law under which the Canadian court issued its order and the terms
of the order itself, as well as the reasons presented by the respondent in requesting that the court
vacate the conviction.” Id.
       However, the record used by the BIA to determine that the Canadian court acted solely for
immigration purposes appears to be incomplete. The BIA based its ruling on the fact that the
“judgment only refers, as the grounds for ordering the conviction quashed, to the respondent’s
request and his supporting affidavit.” Id. In fact, the Canadian court, in quashing the Petitioner’s
conviction, relied on “the notice of appeal filed herein and the affidavit of the [Petitioner] and [the]
hearing . . .” J.A. at 62. There is nothing in the record before us regarding the hearing that the
Canadian court relied upon, in part, to quash the conviction.
        The Petitioner, in his notice of appeal and affidavit, stated that he was appealing his
conviction because of the bar it placed on his permanent immigration to the United States. J.A. at
58, ¶ 5; 61, ¶ 18. The BIA imparted the Petitioner’s motivation for seeking to have the conviction
quashed onto the Canadian court as its rationale for quashing the conviction. Matter of Pickering,
23 I&N Dec. at 625, J.A. at 38. However, the motive of the Petitioner in seeking to have his
conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240 F.3d 577, 583
(7th Cir. 2001). Such motive is relevant only to the extent that the Canadian court relied upon it in
quashing the conviction. As the record before us does not include a record of the hearing and is,
therefore, incomplete, it is impossible to tell the extent to which the Canadian court relied upon
Petitioner’s motive, or even why the Canadian court acted in the manner it did.
        The government relies on this Court’s ruling in Zaitona, 9 F.3d at 437, to support the
proposition that “where the record, as here, provides a reasonable basis to conclude that a motion
to quash or vacate a conviction is driven by immigration hardships and not [by] remedying statutory
or constitutional violations, . . . a conviction remains a conviction for immigration purposes.” Final
Brief of Respondent at 35. Zaitona, however, is easily distinguishable on the facts.
        In Zaitona, the only explanation offered by the state court for vacating the conviction was
so that it might consider a Judicial Recommendation Against Deportation (“JRAD”). Zaitona, 9
F.3d at 437. Immediately following the vacation of his conviction, Zaitona pleaded guilty to the
identical crime. The only difference between the first and second sentence was the JRAD. Id. In
Zaitona, “[i]t was unimportant to [the Court’s] determination that Zaitona's attorney may have
originally surrounded his request for the JRAD with language of ineffective assistance of
counsel . . .,” because it was apparent from the order of the court and the record that the conviction
was vacated solely for immigration reasons. Id. Unlike Zaitona, in the instant case, the order of the
Canadian court is silent on the question of its motivation, referring instead to the Petitioner’s
request, supporting affidavit and “hearing.” Matter of Pickering, 23 I&N Dec. at 625, J.A. at 38.
In Zaitona, the record provided more than a “reasonable basis” for concluding that the judgment was
vacated for immigration reasons. Indeed, the record clearly revealed “substantial evidence that the
[] court’s action was taken for the sole purpose of relieving Zaitona from deportation.” Zaitona, 9
No. 03-3928              Pickering v. Gonzales                                                             Page 4


F.3d at 437. Here, the record before us lacks the record of the hearing upon which the Canadian
judge relied, at least in part, in quashing the conviction.
         As the order of the Canadian court is silent on the question of its motivation or rationale, the
BIA looked to the notice of appeal and affidavit filed by the Petitioner, ruling that neither identified
a basis to question the integrity of the underlying criminal proceeding or conviction. There is no
reference to the hearing before the Canadian court, no indication that the BIA had that record in its
possession and no indication that it reviewed it in any fashion to determine the rationale behind the
decision of that court. Id. In its decision, the BIA distinguished the Petitioner’s case from its ruling
in Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378. J.A. at 36, 23 I&N Dec. at 623. In Rodriguez-Ruiz,
a state court vacated a conviction pursuant to a state law that authorized vacation based on the legal
merits of the underlying provision. 22 I&N Dec. at 1379. In the instant case, because the Canadian
court order made no reference to any legal authority, the BIA presumed that its decision was made
solely for immigration purposes. J.A. at 38, 23 I&N Dec. at 625. While assuming that the Canadian
court adopted the Petitioner’s motive, the BIA has also assumed that it ignored the legal basis the
Petitioner articulated for seeking to have his conviction quashed.
        In his notice of appeal to the Canadian court (J.A. at 58, ¶ 6), and in the affidavit in support
of said appeal (J.A. at 61, ¶ 21), the Petitioner indicates that he is appealing his conviction pursuant
to § 24(1) of the Canadian Charter of Rights and Freedoms. Section 24(1) provides that: “[a]nyone
whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may appeal
to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
just.” Affidavit of Kent Roach, J.A. at 40, ¶ 7. The Petitioner presented expert testimony, via
affidavit, which concluded that, in order to quash the Petitioner’s conviction, the Canadian court
“must have concluded that [his] rights under the Canadian Charter of Rights and Freedoms [had]
been violated.” Id. at 41, ¶ 8.
        According to the expert testimony provided by the Petitioner, which was undisputed by the
government, a Canadian court can quash a conviction under § 24(1) of the Charter only for reasons
related to a violation of rights granted Canadian citizens in the Canadian Charter of Rights and
Freedoms. Id. at 41, ¶ 10. If the Canadian court acted pursuant to the legal authority cited and relied
upon by the Petitioner, it could not have acted solely for immigration reasons. In presuming that
the Canadian court quashed the conviction for immigration reasons, the BIA concluded that the
Canadian court assumed the Petitioner’s motives as stated in his affidavit and notice of appeal, but
did not consider the legal authority he cited.
        When the government seeks to deport a resident alien, it carries a heavy burden. Berenyi v.
District Director, Immigration and Naturalization Service, 385 U.S. 630, 636 (1967). To support
a determination that an immigrant is deportable, the government must establish its allegations by
“clear, unequivocal, and3 convincing evidence.” Zaitona, 9 F.3d at 434 (quoting Woodby v. INS, 385
U.S. 276, 285 (1966)). Once the INS has established its prima facie case, the burden of going
forward to produce evidence of non-deportability then shifts to the petitioner. Id. (internal citations
and quotation marks omitted). As an initial matter, the government has satisfied its prima facie case
by pointing to evidence that the Petitioner was convicted of a drug crime. The Petitioner, for his
part, has produced evidence that the conviction for which the government wishes to deport him has
been vacated by a court of competent jurisdiction. This is sufficient to meet his burden under
Zaitona of showing non-deportability. Accordingly, the Petitioner is deportable only if the

        3
           Zaitona, a 1993 decision, pre-dates a 1996 amendment to 8 U.S.C. § 1229a(c)(3) that deleted the term
“unequivocal” from the Immigration and Nationality Act. We think the amendment has only a minimal effect on the
standard, if any, because evidence that is “equivocal” could not be considered “clear and convincing.” Nevertheless,
we acknowledge that, as the government argues, the current standard is “clear and convincing evidence.” See also
8 C.F.R. § 1240.8(a).
No. 03-3928                Pickering v. Gonzales                                                                    Page 5


government can show, with clear and convincing evidence, that the conviction was vacated solely
for immigration reasons. See id.; see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir.
2005). To prove deportability in this case, the government must produce evidence of a conviction
that remains valid for immigration purposes. In order to meet its burden, the government must
prove, with clear and convincing evidence, that the Petitioner’s conviction was quashed solely for
rehabilitative reasons or reasons related to his immigration status, i.e., to avoid adverse immigration
consequences. The government has failed to meet its burden.4
         The BIA relied on the Petitioner’s notice of appeal and affidavit in determining that the
Canadian court acted on the basis of the Petitioner’s immigration status. In doing so, it overlooked
the fact that the record was incomplete without a record of the hearing held by the Canadian court,
and minimized or even ignored the fact that the Petitioner appealed his conviction pursuant to a law
that allows a remedy only for procedural or substantive defects in the underlying conviction. The
conclusion that the Canadian court acted solely for immigration reasons can only be reached by
inference, based on the Petitioner’s notice of appeal and affidavit. As the record from the Canadian
court appears to be incomplete, and the BIA relied on certain parts of the Petitioner’s affidavit and
notice of appeal, while minimizing or ignoring other parts, the evidence supporting deportation can
hardly be described as “clear and convincing.”
        The BIA, in the instant case, upheld the Immigration Judge’s finding that the government
had met its burden of proving that the Petitioner was deportable with clear and convincing evidence.
That determination “must be upheld if ‘supported by reasonable, substantial, and probative evidence
on the record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting
8 U.S.C. § 1105a(a)(4)). Under this deferential standard, we may not reverse the BIA determination
simply because we would have decided the matter differently. Mikhailevitch v. INS, 146 F.3d 384,
388 (6th Cir. 1998); Klawitter v. INS, 970 F.2d 149, 151-52 (6th Cir. 1992). In order to reverse a
BIA factual determination, the evidence must compel a contrary conclusion. Koliada v. INS, 259
F.3d 482, 486 (6th Cir. 2001). In order to meet its burden in this case, the government either would
have had to present direct evidence that demonstrates that the Canadian court quashed the conviction
for immigration reasons, or present evidence from which one could infer and conclude that the
Canadian court acted solely to affect Pickering’s immigration status. This, the government failed
to do.
         The Petitioner was found by the IJ, and later the BIA, to be deportable based upon a
Canadian drug conviction. The conviction, however, had been quashed. A vacated conviction
remains valid for immigration purposes only if it was vacated solely for rehabilitative reasons. The
IJ, and later the BIA, found that the Petitioner’s quashed conviction was still valid for immigration

         4
           The government argues, in a supplemental brief filed after the close of oral argument, that the burden to prove
that the conviction was not quashed solely for immigration reasons lies with the Petitioner. However, we agree with the
determination of the BIA, the Seventh Circuit and the Tenth Circuit that the government bears the burden of proving that
a vacated conviction remains valid for immigration purposes. See Matter of Kaneda, I. & N. Dec. 677, 680 (1977);
Sandoval 240 F.3d at 581-82; Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005). Even were the burden with
the Petitioner, he has met that burden. The order of the Canadian court quashing the Petitioner’s conviction relies on
the affidavit of the Petitioner, the notice of appeal, and on a hearing held in the matter. In his affidavit seeking to have
his conviction quashed, the Petitioner relied on Canadian legal authority that would allow the Canadian court to act only
if there existed some procedural or substantive defect in the conviction. The only legal authority cited anywhere in the
record of the Canadian court allows it to act only to redress violations of the Petitioner’s rights. When a court acts
pursuant to a law that allows it to act based only on the merits of the underlying position, it is presumed not to have acted
contrary to that law, solely to enable the Petitioner to avoid adverse immigration consequences. See Matter of
Rodriguez-Ruiz, 22 I&N Dec. 1378, 1379-80; see also Cruz-Garza, 396 F.3d at 1131-32 (holding that where state court
acted pursuant to legal authority that allowed reduction of conviction based on reasons unrelated to adverse immigration
consequences, the government failed to demonstrate that the petitioner was deportable even though evidence on the
record allowed for the reasonable inference that the court was motivated, at least in part, by a desire to avoid said
consequences).
No. 03-3928                 Pickering v. Gonzales                                                                      Page 6


purposes, apparently concluding that it had been vacated solely for rehabilitation reasons, to wit: to
allow the petitioner to remain in this country. It is the opinion of this Court that the evidence on the
record does not support such a finding. Specifically, we conclude that the government has failed
to satisfy its burden of proving deportability with clear and convincing evidence.
        Generally, where a reviewing court cannot sustain an agency decision, because the agency
has failed to offer a legally sufficient basis for its decision, the appropriate remedy is to remand to
the agency for further consideration. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002); see also
N'Diom v. Gonzales, 442 F.3d 494, 496 (6th Cir. 2006). However, that rule applies most often in
asylum cases where the BIA has failed to consider evidence on the record, or has insufficiently
articulated its reasoning. N’Diom, 442 F.3d at 498-99. In this case, while the Petitioner is not
seeking asylum, but rather is asking us to review the removal proceedings in which an IJ and the
BIA concluded that he was deportable, a proceeding under a different statutory section than an
application for asylum, the dispositive difference appears to be that this is not a situation where the
hearing officer failed to consider evidence on the record or insufficiently articulated his reasoning.
        Were we to remand for further proceedings, the only way that the government might satisfy
its burden is by introducing evidence not currently on the record. In reviewing removal proceedings,
under 8 U.S.C. § 1252(a)(1), while we have broader powers of review than are granted courts in
reviewing petitions for asylum, we do not have the authority to remand for consideration of
additional evidence where one of the parties seeks to introduce such, and5 there is nothing to indicate
that Congress intended to grant us the authority to do such sua sponte.
       The record before the BIA at the time it made its decision did not contain evidence sufficient
to support a finding of deportability. Had the BIA properly applied the facts before it to the law, it
would have held that the Petitioner was not deportable. The proper course in the circumstances
before us is to reverse without a remand for further consideration. See Cruz-Garza v. Ashcroft, 396
F.3d 1125 (10th Cir. 2005) (reversing and vacating BIA ruling in a factually analogous situation).
       We conclude that the INS did not prove by clear and convincing evidence that Pickering’s
conviction remained valid for immigration purposes. The INS did not prove that the Canadian court
quashed the Petitioner’s conviction solely to avoid adverse immigration consequences. The BIA
held that the government had satisfied its burden of proving the Petitioner deportable, and the
evidence compels a contrary conclusion. We thus hold that the BIA and the Immigration Judge
erred in finding that Pickering was deportable. Accordingly, the judgment of the BIA is
REVERSED and we REMAND this case to the Board of Immigration Appeals for entry of an order
terminating deportation proceedings and quashing the order of deportation.




         5
             Section 1252(a)(1) provides that:
         Judicial review of a final order of removal . . . is governed only by chapter 158 of Title 28, except . . .
         that the court may not order the taking of additional evidence under section 2347(c) of Title 28.
Where applied, § 1252(a)(1) has most often limited the petitioner’s ability to introduce new evidence on review, or the
court’s ability to require the BIA to open the record to take additional evidence. See Lin v. Gonzales, 150 Fed. Appx.
326, 2005 WL 2450255 (5th Cir. 2005).
