Waseem Khan v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1427
____________
WASEEM AHSAN KHAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
____________
On Petition for Review of a Decision of
the Board of Immigration Appeals
[Agency No. 047-698-921]
Immigration Judge: Daniel A. Morris
____________
Argued July 8, 2020
Before: KRAUSE, MATEY, and RENDELL Circuit Judges
(Opinion Filed: November 3, 2020)
Eric M. Mark [ARGUED]
201 Washington Street
Newark, NJ 07102
Attorney for Petitioner
Surell Brady
United States Department of Justice
Office of Immigration Litigation
Room 5044
P.O. Box 878
Washington, DC 20044
Sunah Lee [ARGUED]
Andrew N. O’Malley
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Washington, DC 20044
Attorneys for Respondent
David A. Isaacson
Cyrus D. Mehta & Partners
One Battery Park Plaza
9th Floor
New York, NY 10004
Attorney for Amici Curiae American Immigration
Lawyers Association, National Immigration Project of
the National Lawyers Guild, and Immigrant Defense
Project
____________
2
OPINION OF THE COURT
____________
KRAUSE, Circuit Judge.
The decision of some states to decriminalize the
possession of personal-use quantities of marijuana has had
collateral consequences well beyond the vacatur of thousands
of convictions. We deal today with a consequence for
noncitizens whose commission of this type of offense, under
applicable immigration laws, would normally “stop time” on
the accrual of the years of continuous residence required to be
eligible for cancellation of removal. See 8 U.S.C.
§§ 1229b(a)(2), 1229b(d)(1). The question is whether that
“stop-time rule” still applies if, post-conviction, the offense has
been decriminalized and the conviction vacated as a result.
Because we hold that a vacatur in this context does not affect
the operation of the stop-time rule, we agree with the Board of
Immigration Appeals that Petitioner in this case did not satisfy
the continuous-residence requirement for eligibility for
cancellation of removal, and we will deny his petition for
review.
I. Background
Petitioner Waseem Ahsan Khan was admitted to the
United States as a legal permanent resident (LPR) in 2000 and
pleaded guilty to possession of less than one-half ounce of
marijuana, in violation of Conn. Gen. Stat. § 21a-279(c), in
2006. He was not subject to removal for that conviction
because it was “a single offense involving possession for one’s
own use of 30 grams or less of marijuana,” 8 U.S.C.
§ 1227(a)(2)(B)(i), but that was not his only tangle with the
Connecticut criminal code.
3
In 2010, Khan was convicted for two counts of larceny
in the third degree under Conn. Gen. Stat. § 53a-124, and those
offenses did subject him to removal as “convict[ions] of two or
more crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct.” 8 U.S.C.
§ 1227(a)(2)(A)(ii). He was eventually served with a Notice
to Appear in 2017, leading to the order of removal that is the
subject of this petition.
At each step along the way, Khan sought cancellation
of removal, a discretionary form of relief that permits an
otherwise removable noncitizen to remain in the country.1 See
Torres v. Lynch, 136 S. Ct. 1619, 1623 (2016). As relevant to
this appeal, he acknowledged that to be eligible for this relief,
he must “ha[ve] resided in the United States continuously for
7 years after having been admitted” as a LPR. 8 U.S.C.
§ 1229b(a)(2). He also did not dispute that he could not meet
that criterion if the “stop-time rule”—which stops the accrual
of continuous residence when the noncitizen “has committed
an offense referred to in section 1182(a)(2) . . . that renders the
alien inadmissible to the United States under section
1182(a)(2),” id. at § 1229b(d)(1)—applies to the marijuana
offense he committed six years after being admitted. But, he
argued, the rule did not apply to him because Connecticut later
decriminalized the underlying offense, see 2011 Conn. Acts
No. 11-71 (Reg. Sess.), and he had applied for and been
1
In the course of his removal proceedings, Khan also
contested removability and sought various other forms of
relief, but we need not address those rulings as they are not
challenged on appeal.
4
granted a vacatur of that conviction, 2 see Conn. Gen. Stat.
§ 54-142d.
The Immigration Judge (IJ) disagreed on the ground
that the vacatur was due to a “post-conviction event[],” rather
than “on the basis of a procedural or substantive defect in the
underlying proceeding[],” and therefore, pursuant to In re
Pickering, 23 I. & N. Dec. 621 (BIA 2003), the conviction
continued to carry immigration consequences. A.R. 261. The
Board of Immigration Appeals (BIA) adopted the IJ’s
reasoning and affirmed, reiterating that because “[t]he
destruction of [Khan’s] conviction record was not based on any
procedural or substantive defect in the conviction itself, but
rather on subsequent events,” his continuous-residence period
terminated when he “committed his drug possession offense.”
App. 7.
Khan timely petitioned for review of the BIA’s
conclusion that his since-vacated conviction triggered the stop-
time rule. 3
2
For simplicity, we refer to the destruction of Khan’s
conviction record under Conn. Gen. Stat. § 54-142d as a
vacatur because this case does not require us to parse any
differences there may be between expungement and vacatur,
terms which we have noted “appear variously in . . . BIA
opinions[] as synonymous.” Pinho v. Gonzales, 432 F.3d 193,
206 n.15 (3d Cir. 2005).
3
In supplemental briefing, the parties addressed a
potential threshold question—whether the stop-time rule,
which is triggered by “an offense referred to in section
5
II. Jurisdiction and Standard of Review
The BIA had jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15, and we have jurisdiction under
8 U.S.C. § 1252(a). Although we lack jurisdiction over the
“discretionary aspects of the denial of cancellation of
removal,” Singh v. Att’y Gen., 807 F.3d 547, 549 n.3 (3d Cir.
2015) (citing 8 U.S.C. § 1252(a)(2)(B)(i)), we retain
jurisdiction over determinations regarding statutory eligibility,
see 8 U.S.C. § 1252(a)(2)(D), including “[s]atisfaction of the
continuous residency requirement,” Singh, 807 F.3d at 549 n.3.
We review the BIA’s legal determination of ineligibility
de novo and any factual findings for substantial evidence,
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010), and it
is the noncitizen’s burden to demonstrate eligibility for
cancellation of removal, see Singh, 807 F.3d at 550.
III. Discussion
On appeal, Khan again contends that he “has resided in
the United States continuously for 7 years after having been
admitted in any status,” 8 U.S.C. § 1229b(a)(2), because his
1182(a)(2)” that renders the noncitizen either “inadmissible”
or “removable,” requires that a LPR, who has already been
“admitted” in that status, be rendered removable. 8 U.S.C.
§ 1229b(d)(1). Because Khan’s marijuana offense could not
have rendered him removable, see 8 U.S.C. § 1227(a)(2)(B)(i),
only inadmissible, see § 1182(a)(2)(A)(i)(II), we held this case
c.a.v. for the Supreme Court’s resolution of that question in
Barton v. Barr, 140 S. Ct. 1442 (2020), which held LPRs may
be rendered inadmissible for purposes of the stop-time rule, id.
at 1450, and which we discuss in further detail below.
6
2006 marijuana offense—the inadmissibility offense that
would otherwise trigger the stop-time rule—was
decriminalized and his conviction vacated. We first discuss the
normal operation of the stop-time rule and then turn to the
effect of a vacatur resulting from the offense’s
decriminalization.
A. The Normal Operation of the Stop-Time Rule
As with any question of statutory interpretation, “we
must begin with the statutory text,” A.A. v. Att’y Gen., 973 F.3d
171, 180 (3d Cir. 2020) (citation omitted), and because we
“presume[] that Congress expresse[d] its intent through the
ordinary meaning of its language,” we start with “an
examination of the plain language of the statute,” id. (first and
second alterations in original) (internal quotation marks and
citation omitted). In particular, courts “normally interpret[] a
statute in accord with the ordinary public meaning of its terms
at the time of its enactment.” Bostock v. Clayton Cty., Ga., 140
S. Ct. 1731, 1738 (2020).
In relevant part, the provision embodying the stop-time
rule provides that a LPR’s continuous residence stops accruing
if and when the LPR “has committed an offense referred to in
section 1182(a)(2) . . . that renders the alien inadmissible to the
United States under section 1182(a)(2).” 4 8 U.S.C.
4
In full, the statute provides that the continuous-
residence period terminates:
(A) . . . when the alien is served a notice to
appear under section 1229(a) of this title, or
(B) when the alien has committed an offense
7
§ 1229b(d)(1). Section 1182(a)(2), in turn, “renders
inadmissible” any noncitizen who is “convicted of, or who
admits having committed, or who admits committing acts
which constitute the essential elements of (I) a crime involving
moral turpitude . . . , or (II) a violation of . . . any law or
regulation . . . relating to a controlled substance (as defined in
section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i). It is
undisputed that the marijuana offense to which Khan pleaded
guilty met these criteria at the time and would have prevented
Khan from having accrued the requisite seven years’
continuous residence in the normal course. But in Khan’s case,
the law later changed: His offense of conviction is no longer a
crime, so his conviction has been vacated. The question for us
is whether, under these changed circumstances, he should still
referred to in section 1182(a)(2) of this title
that renders the alien inadmissible to the
United States under section 1182(a)(2) of
this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of
this title, whichever is earliest.
8 U.S.C. § 1229b(d)(1). Khan was served a notice to appear
well after his seven years’ continuous residence would have
elapsed, so this case concerns only whether Khan committed a
§ 1182(a)(2) offense that renders him “inadmissible . . . or
removable.” Id. While we discuss here only the
inadmissibility prong as relevant to Khan, our analysis pertains
no less to the removability prong. See Barton, 140 S. Ct. at
1453 (explaining that “an offense that would render the
noncitizen deportable under § 1227(a)(2) would also render the
noncitizen inadmissible under § 1182(a)(2)”).
8
be considered to “ha[ve] committed an offense referred to in
section 1182(a)(2) . . . that renders the alien inadmissible . . .
under section 1182(a)(2).” 8 U.S.C. § 1229b(d)(1). And the
answer depends on what is required by this statutory text.
By its terms, the stop-time rule is susceptible to two
readings. One is that the LPR previously committed one of the
offenses specified in § 1182(a)(2), with the clause “that renders
the alien inadmissible . . . under section 1182(a)(2)” serving
merely to describe the significance of “an offense [being]
referred to in section 1182(a)(2).” The other is that the rule
incorporates two distinct requirements: (1) the LPR must have
previously committed one of the offenses specified in
§ 1182(a)(2), and (2) the LPR’s conviction of or admission to
the offense “renders [him] inadmissible.” But of the two
possible readings, only the latter comports with the statutory
text and finds support in precedent.
As a textual matter, this second reading is proper for
three reasons. First, Congress’s use of different verb tenses in
each of the clauses—present-perfect in “has committed” and
present in “renders”—reflects its intent for the two clauses to
define separate requirements. See United States v. Wilson, 503
U.S. 329, 333 (1992); Santos-Reyes v. Att’y Gen., 660 F.3d
196, 199 (3d Cir. 2011). Second, “[w]ords are to be given the
meaning that proper grammar and usage would assign them,”
United States v. Johnman, 948 F.3d 612, 618 (3d Cir. 2020)
(alteration in original) (quoting Nielsen v. Preap, 139 S. Ct.
954, 965 (2019)), and though not so well-recognized as to rise
to the level of a grammatical canon, the word “that” prefacing
the second clause generally serves as a restrictive pronoun
introducing necessary, additional information—in contrast to
“which,” a non-restrictive pronoun generally prefacing only
9
clarifying information, see Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 142–43
(2012); see Calix v. Lynch, 784 F.3d 1000, 1005–06 n.4 (5th
Cir. 2015). Finally, it is a “cardinal principle of statutory
construction that we must give effect, if possible, to every
clause and word of a statute,” N.L.R.B. v. SW Gen., Inc., 137
S. Ct. 929, 941 (2017) (internal quotation marks and citation
omitted), but the first reading would make the clause “that
renders . . . inadmissible” entirely superfluous, while the
second reading “adhere[s] to the statutory text, which
differentiates between the two [requirements],” Nasrallah v.
Barr, 140 S. Ct. 1683, 1693 (2020), and thus gives distinct
purpose to the “renders . . . inadmissible” clause.
It is not surprising, then, that even before the Supreme
Court weighed in, our sister circuits and the BIA had adopted
the second reading and held that the clause “that renders the
alien inadmissible . . . under section 1182(a)(2)” in fact
“qualifies, rather than describes, the preceding clause,” Calix,
784 F.3d at 1005 n.4, and thus “limit[s] . . . the types of
offenses which cut off the accrual of further time” to those for
which the petitioner has been “rendered inadmissible—by a
conviction, admission of the criminal conduct, or through some
other means,” Heredia v. Sessions, 865 F.3d 60, 69–70 (2d Cir.
2017) (quoting In re Perez, 22 I. & N. Dec. 689, 693 (BIA
1999)). And Barton v. Barr last term solidified that view. 140
S. Ct. 1442 (2020).
There, the Supreme Court had occasion to consider the
meaning of the stop-time rule in connection with a different
question: whether a LPR—who is already considered
“admitted” under the immigration code—can still trigger the
stop-time rule by committing an offense that renders him
10
inadmissible, or only by committing an offense that renders
him removable. See id. at 1447–48. It concluded LPRs
remained subject to the stop-time rule for inadmissibility
offenses, see id. at 1450–51, but as relevant for our purposes,
the Court also observed that the stop-time rule has two distinct
requirements:
First, cancellation of removal is precluded if a
noncitizen committed a § 1182(a)(2) offense
during the initial seven years of residence, even
if . . . the conviction occurred after the seven
years elapsed. . . . Second, the text of the law
requires that the noncitizen be rendered
“inadmissible” as a result of the offense. . . .
[And] “while only commission is required at step
one, conviction (or admission) is required at step
two.”
Barton, 140 S. Ct. at 1449–50 (quoting Barton v. Att’y Gen.,
904 F.3d 1294, 1301 (11th Cir. 2018)).
In sum, based on both text and precedent, the stop-time
inquiry involves two questions: (1) Did the Petitioner commit
one of the offenses identified in § 1182(a)(2) before accruing
seven years’ continuous residence, and (2) was the Petitioner
rendered inadmissible under § 1182(a)(2) as a result of that
offense? Id.; see also Barton, 904 F.3d at 1300, aff’d, Barton,
140 S. Ct. 1442 (describing the two steps); Nguyen v. Sessions,
901 F.3d 1093, 1096 (9th Cir. 2018), abrogated on other
grounds by Barton, 140 S. Ct. 1442 (same); Heredia, 865 F.3d
at 67 (same); Calix, 784 F.3d at 1008 (same). As those
questions guide our analysis concerning Khan, we consider
next whether the decriminalization of his offense and the
11
resulting vacatur of his conviction change either of the
answers.
B. The Stop-Time Rule Applies to a Decriminalized
Offense
For the reasons discussed below, we conclude that once
both requirements for the application of the stop-time rule were
satisfied, the subsequent vacatur of Khan’s conviction did not
remove him from the rule’s ambit.
1. Vacatur Has No Effect on When an Offense
was “Committed”
For the first requirement, our answer is straightforward:
The text of the stop-time rule speaks not to the existence of a
conviction, but to whether the noncitizen “committed an
offense referred to in section 1182(a)(2).” 8 U.S.C.
§ 1229b(d)(1) (emphasis added). Congress’s choice of
“commission” over “conviction” is significant, for the plain
meaning of commit is “to carry into action deliberately:
perpetrate,” Commit, Merriam-Webster’s Collegiate
Dictionary (10th ed. 1995) (capitalization altered), or to
“perform (convicted of committing crimes against the state),”
Commit, Webster’s Third New International Dictionary (1993)
(capitalization altered). See also Commit, American Heritage
Dictionary (3d ed. 1992) (To “perform, or perpetrate: commit
a murder.”). The “commi[ssion] [of] an offense,” in other
words, “focus[es] upon the subject’s conduct,” Santos-Reyes,
660 F.3d at 198–99, and is properly understood to connote
“historical events,” Doe v. Att’y Gen., 659 F.3d 266, 271 (3d
Cir. 2011).
12
With that understanding, the first clause is satisfied
when the conduct itself “occur[s] on a particular date before
the end of the seventh year of continuous residence, or [the]
conduct . . . runs up to the date when the seventh year of
residency ends,” regardless of “when the subject is criminally
charged for the conduct” or is convicted of it. Santos-Reyes,
660 F.3d at 199. That understanding accords with Barton,
where the Supreme Court observed that a LPR who committed
an offense before meeting the continuous-residence
requirement would be ineligible for cancellation “even if . . .
the conviction occurred after the seven years elapsed.” 140 S.
Ct. at 1449. It is also consistent with the way the Courts of
Appeals and the BIA have discussed this requirement. See
Briseno-Flores v. Att’y Gen., 492 F.3d 226, 229 (3d Cir. 2007)
(“[T]he commission of [an inadmissibility offense] effectively
stops the time which counts toward the calculation of . . .
continuous [residence].”); see also Heredia, 865 F.3d at 70–
71; Calix, 784 F.3d at 1012; In re Perez, 22 I. & N. Dec. at
693–94.
In short, the stop-time rule’s requirement that a
noncitizen “has committed an offense referred to in section
1182(a)(2),” 8 U.S.C. § 1229b(d)(1), pegs the date to the
offense conduct—a matter of historical fact that is unaltered by
the noncitizen’s conviction, much less by any vacatur of that
conviction.
2. Vacatur Due to Decriminalization of an
Offense Has No Effect on Whether a
Noncitizen is Rendered Inadmissible
For the second requirement, the focus shifts from when
the noncitizen committed the inadmissibility offense to
whether the offense “render[s] the [noncitizen] inadmissible to
13
the United States under section 1182(a)(2),” 8 U.S.C.
§ 1229b(d)(1), meaning whether he was “convicted of, or . . .
admits having committed, or . . . admits committing acts which
constitute the essential elements of” 5 the inadmissibility
offense at issue, 8 U.S.C. § 1182(a)(2)(A)(i). Where, as here,
the agency has determined inadmissibility is based on the
noncitizen’s “conviction,” rather than “admission,” 6 we
5
This statutory language predates and remains
consistent with the general definition of “conviction” in the
Immigration and Nationality Act:
[A] formal judgment of guilt of the alien entered
by a court or, if adjudication of guilt has been
withheld, 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. § 1101(a)(48)(A). Both this definition and the stop-
time rule were introduced as part of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009-546 (1996).
6
Notwithstanding Khan’s guilty plea and admissions at
his plea colloquy, the IJ and BIA focused on Khan’s
“conviction,” not “admissions.” Because we may affirm only
on a basis the BIA considered, see I.N.S. v. Orlando Ventura,
14
consider whether a subsequent vacatur of that conviction
negates that consequence.
As a general matter, the answer is no. The immigration
consequences of a criminal conviction are typically fixed at the
time of conviction and not altered by post-conviction
developments in the law. 7 See, e.g., Vartelas v. Holder, 566
U.S. 257, 261 (2012) (holding that the collateral effects of a
noncitizen’s conviction were determined “by the legal regime
in force at the time of his conviction”), Martinez v. Att’y Gen.,
537 U.S. 12, 16 (2002), we review the issue presented as
involving only a “conviction” and will not consider whether
Khan’s guilty plea renders him inadmissible for being a
noncitizen “who admits having committed, or who admits
committing acts which constitute the essential elements of” an
inadmissibility offense. 8 U.S.C. § 1182(a)(2)(A)(i). Neither
will we consider any inadmissibility exception that Khan did
not raise before the BIA, such as a waiver for “a single offense
of simple possession of 30 grams or less of marijuana” under
§ 1182(h). See Rachak v. Att’y Gen., 734 F.3d 214, 218 (3d
Cir. 2013); see also Heredia, 865 F.3d at 67 n.8 (noting that in
defining inadmissibility, § 1182 also “includes criteria for
various types of relief from inadmissibility”).
7
As federal law governs immigration matters, it is
federal law that prescribes what effect, if any, a state’s repeal
or amendment of its criminal laws has on immigration
proceedings. See Acosta v. Ashcroft, 341 F.3d 218, 223 (3d
Cir. 2003) (noting that a state legislature “obviously cannot
dictate how the term ‘conviction’ is to be construed under
federal law”).
15
906 F.3d 281, 287 (3d Cir. 2018) (holding that we “compare
the [controlled substances] schedules at the time of conviction”
and rejecting petitioner’s argument that his conviction did not
trigger immigration consequences because it was not a
categorical match with the current schedule (citing Mellouli v.
Lynch, 575 U.S. 798, --, 135 S. Ct. 1980, 1984 (2015)); Doe v.
Sessions, 886 F.3d 203, 210 (2d Cir. 2018) (same); In re
Velasquez-Rios, 27 I. & N. Dec. 470, 472 (BIA 2018)
(describing the analysis of eligibility for cancellation of
removal in connection with a conviction for a crime involving
moral turpitude as a “backward-looking inquiry into the
maximum possible sentence the alien could have received for
his offense at the time of his conviction” (emphasis omitted)).
According to Khan, however, a vacatur turns that
general rule on its head so that, except in the narrow
circumstance where a vacatur was granted on the basis of
rehabilitation or immigration hardship, no vacated conviction
carries immigration consequences. Khan relies for this
proposition on In re Pickering, where the BIA recognized “a
significant distinction between convictions vacated on the
basis of a procedural or substantive defect in the underlying
proceedings and those vacated because of post-conviction
events, such as rehabilitation or immigration hardships,”
holding that only in the latter case does “the respondent
remain[] ‘convicted’ for immigration purposes.” 8 23 I. & N.
8
Khan does not seriously contend that his conviction
was “vacated on the basis of a procedural or substantive
defect,” Pickering, 23 I. & N. Dec. at 624, in his underlying
criminal case, nor could he. Although he cited the Due Process
Clause of the Fifth and Fourteenth Amendments of the United
16
Dec. 621, 624 (BIA 2003). He also points to our opinion in
Pinho v. Gonzales, according Chevron deference to Pickering
and concluding, in the analogous context of assessing
eligibility for adjustment of status under 8 U.S.C. § 1255,9 that
“substantive vacaturs,” but not “rehabilitative vacaturs,”
render the noncitizen “no longer [] ‘convicted’ for immigration
purposes.” 432 F.3d 193, 209–10 (3d Cir. 2005) (applying
Pickering to hold that a conviction vacated due to ineffective
States Constitution and provisions of the Connecticut
Constitution in his petition for destruction of record, the BIA
and this Court consider in the first instance whether “the order
explains the court’s reasons for vacating the conviction.”
Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. 2005). Only if
“the order does not give a clear statement of reasons,” is it
permissible to look at “the record before the court when the
order was issued,” id., and Khan’s order, which states “the
Petition for Destruction of Record of Decriminalized Offense
is GRANTED,” App. 9, reflects that his vacatur was based not
on any substantive defect in the criminal proceeding, but on the
state legislature’s policy decision to decriminalize an offense.
See Prado v. Barr, 949 F.3d 438, 442 (9th Cir. 2020)
(observing that a state’s reclassification of and reduction of
penalties for certain marijuana convictions did not reveal “a
‘substantive’ flaw in [those] conviction[s]”).
9
As Barton observed, “Congress . . . made th[e]
status—inadmissibility because of conviction or other proof of
commission of § 1182(a)(2) offenses—relevant in several
statutory contexts,” including “adjustment to permanent
resident status.” 140 S. Ct. at 1452 (citing 8 U.S.C. § 1255(a),
(l)(2)).
17
assistance of counsel reflected a defect in the underlying
proceeding and therefore did not render the noncitizen
ineligible for adjustment of status to permanent resident); see
Rodriguez v. Att’y Gen., 844 F.3d 392, 397–98 (3d Cir. 2016)
(same); see also Andrade-Zamora v. Lynch, 814 F.3d 945,
949–50 (8th Cir. 2016) (applying Pickering in stop-time
context); Saleh v. Gonzales, 495 F.3d 17, 25 (2d Cir. 2007)
(same).
Khan is simply mistaken in his reading of Pickering.
The BIA’s holding was not that only vacaturs based on
“rehabilitation or immigration hardships” continue to function
as convictions under the immigration code. To the contrary,
the agency identified those situations as illustrative, not
exhaustive, examples of the broad category of cases in which
“a court vacates a conviction for reasons unrelated to the merits
of the underlying criminal proceedings, [and] the [noncitizen]
remains ‘convicted’ for immigration purposes.” Pickering, 23
I. & N. Dec. at 624; see Bragdon v. Abbott, 524 U.S. 624, 639
(1998) (noting that “use of the term ‘such as’ confirms, [a] list
is illustrative, not exhaustive”). In effect, then, Khan has the
BIA’s position backwards: Under Pickering, only if a
conviction is vacated “based on a defect in the underlying
criminal proceeding[],” does it cease to function as a
“conviction” for immigration purposes.” 23 I. & N. Dec. at
624; see also Pinho, 432 F.3d at 207–09.
In sum, the vacatur of Khan’s conviction for an
inadmissibility offense does not relieve him of the effects of
the stop-time rule because it does not alter the historical fact
that he committed the offense or that the offense “renders [him]
inadmissible,” 8 U.S.C. § 1229b(d)(1), as a consequence of his
conviction. We therefore agree with the BIA that Khan’s
18
“period of continuous residence ended when he committed his
drug possession offense,” App. 7., and because he had not yet
accrued the requisite seven years’ continuous residence, Khan
is ineligible for cancellation of removal.
IV. Conclusion
For the foregoing reasons, we will deny the petition for
review.
19