LUIS BALLINAS-LUCERO V. MERRICK GARLAND, No. 17-73260 (9th Cir. 2022)
Annotate this Case
Petitioner pleaded guilty, without counsel, to six misdemeanor theft charges. The BIA later concluded that his petty theft convictions were crimes involving moral turpitude that rendered him ineligible for cancellation of removal. Petitioner moved the Superior Court, through counsel and pursuant to Cal. Penal Code Section 1018, to withdraw his guilty pleas and set aside his convictions.
The Superior Court granted his motion, and Petitioner pleaded guilty to violating Cal. Penal Code Section 368(d), theft from an elder adult. Petitioner moved to reopen his immigration proceedings. The BIA granted the motion but ultimately decided that Petitioner failed to meet his burden of proof as to the nature of the vacatur of his convictions.
Granting Petitioner’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the Ninth Circuit held that: 1.) an applicant for cancellation of removal bears the burden of proving that a conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reasons; and 2.) Petitioner carried this burden of proof.
The court explained that vacated convictions remain valid for immigration purposes if they are vacated solely for reasons unrelated to the merits of the underlying criminal proceedings, that is, equitable, rehabilitative, or immigration reasons. However, a conviction vacated on the basis of a defect in the underlying criminal proceedings is no longer valid for immigration purposes. Next, the court concluded that Petitioner carried that burden, explaining that the record compelled the conclusion that his convictions were vacated due to legal defects in his pleas.
Court Description: Immigration. Granting Luis Maximino Ballinas-Lucero’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that: 1) an applicant for cancellation of removal bears the burden of proving that a conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reasons; and 2) Ballinas-Lucero carried this burden of proof. In 2012, Ballinas-Lucero pleaded guilty, without counsel, to six misdemeanor theft charges. The BIA later concluded that his petty theft convictions were crimes involving moral turpitude that rendered him ineligible for cancellation of removal. Ballinas-Lucero moved the Superior Court, through counsel and pursuant to Cal. Penal Code § 1018, to withdraw his guilty pleas and set aside his convictions. In his Memorandum of Points and Authorities, he wrote that he was afraid for his safety in jail, ignorant of his rights in court, and did not have a working knowledge of English. He wrote, further, that the Superior Court judge told him that if he pleaded right away he would be given credit for time served and released. Within a few minutes, he had pleaded guilty without having read the police reports or consulting an attorney. He wrote that he did not understand that as soon as he pleaded guilty his fate was sealed not only with the courts but with immigration. BALLINAS-LUCERO V. GARLAND 3 The Superior Court granted his motion, and Ballinas- Lucero pleaded guilty to violating Cal. Penal Code § 368(d), theft from an elder adult. Ballinas-Lucero moved to reopen his immigration proceedings. The BIA granted the motion, but ultimately decided that Ballinas-Lucero failed to meet his burden of proof as to the nature of the vacatur of his convictions. The panel explained that vacated convictions remain valid for immigration purposes if they are vacated solely for reasons unrelated to the merits of the underlying criminal proceedings, that is, equitable, rehabilitative, or immigration reasons. However, a conviction vacated on the basis of a defect in the underlying criminal proceedings is no longer valid for immigration purposes. The panel held that applicants for cancellation of removal bear the burden of proving that their vacated convictions are not valid for immigration purposes. The panel relied on Pereida v. Wilkinson, 141 S. Ct. 754 (2021), where the Supreme Court held that because Pereida bore the burden of proving his eligibility for cancellation, in the face of ambiguous state court records, any uncertainty about whether he stood convicted of a disqualifying crime was enough to defeat his application for relief. Next, the panel concluded that Ballinas-Lucero carried that burden, explaining that the record compelled the conclusion that his convictions were vacated due to legal defects in his pleas. The panel observed that, under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), the BIA considers: (1) the law under which the court issued its order, (2) the language of the court’s order, and (3) the reasons provided by the noncitizen in the request for post-conviction 4 BALLINAS-LUCERO V. GARLAND relief. The BIA concluded that Ballinas-Lucero’s evidence (the statute under which vacatur was granted, Cal. Penal Code § 1018, and his Memorandum of Points and Authorities) was “inconclusive” as to whether his convictions were vacated “on the merits.” The panel disagreed. First, the panel concluded that the grounds for allowing withdrawal of a guilty plea under Cal. Penal Code § 1018 are substantive and procedural defects in the underlying proceeding. Second, the panel concluded that any reasonable adjudicator reading Ballinas-Lucero’s Memorandum would be required to find that the grounds asserted pertained overwhelmingly to substantive and procedural defects. Third, the panel concluded that the BIA erred, under In re Pickering, by finding dispositive the absence of any statement by the court regarding the reasons for permitting the withdrawal of the guilty plea. The panel remanded to the BIA to determine in the first instance (1) whether Ballinas-Lucero’s remaining conviction under Cal. Penal Code § 368(d) qualifies as a CIMT, and if so, whether the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II) applies to it; and (2) whether Ballinas- Lucero satisfies the other statutory requirements for cancellation of removal. BALLINAS-LUCERO V. GARLAND 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.