Matter of Chmura, 2010 WL 4500863, A035-957-832 (BIA Oct. 28, 2010) (Detroit). More information about the noncitizen is available at http://www.state.mi.us/mdoc/asp/otis2profile.asp?mdocNumber=735857.
The LPR was ordered removed for having been convicted of multiple CIMTs. She did not appeal but filed a timely motion to reopen after one of her convictions were vacated pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The IJ denied the motion, asserting that the LPR did not prove that the convictions were vacated under Padilla as opposed to a rehabilitative statute or to avoid removal.
On appeal, the BIA reversed. Citing to the Sixth Circuit's decision in Barakat v. Holder, http://6thcir.blogspot.com/2010/09/ice-has-burden-of-proving-vacated.html, the BIA held that ICE bore the burden of proving that the convictions were vacated for an improper purpose. The noncitizen met her burden of proof by submitting an order from a court of competent jurisdiction vacating the conviction. Doing so shifts the burden to ICE to establish the basis for the state court's action. The Board applied Barakat equally to motions to reopen and motions to remand.
The BIA remanded to allow ICE to attempt to meet its burden.
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