ICE has burden of proving a vacated conviction remains valid for immigration purposes

In a pair of decisions, Barakat v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0297p-06.pdf (published), and Agolli v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0562n-06.pdf, the Sixth Circuit addressed which party bears the burden of proving that an alien is or is not removable if a conviction is set aside.

ICE bears the initial burden of proving that an alien is removable.  If ICE makes out a prima facie case, the burden shifts to the alien to produce evidence of his non-removability, such as proof that a court of competent jurisdiction vacated the conviction.  At that point, the burden shifts to ICE to prove by clear and convincing evidence that the conviction remains valid for immigration purposes, in other words, that the conviction was vacated for rehabilitative or immigration purposes.

In Barakat, the Court reiterated that Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) placed the burden on ICE to show that a conviction was set aside for "improper" purposes.  The Court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) is distinguishable because in that case, ICE carried its burden by submitting uncontested circumstantial evidence that the conviction was vacated solely for immigration purposes.

In Barakat, the record was unclear as to why his conviction was vacated.  This meant that ICE could not meet its burden.