Sixth Circuit on who bears the burden of proof when a conviction is vacated

Barakat v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0528n-06.pdf.

The Court reversed the BIA because the BIA improperly placed the burden on the alien to prove that a conviction was vacated for permissible reasons.  The offending conviction in this case was set aside while the alien's appeal was pending with the BIA.  The alien submitted the state court order but not the motion itself.

ICE bears the initial burden of proving, by clear and convincing evidence, that an alien is removable.  If ICE makes out a prima facie case, then the burden shifts to the alien to establish non-removability, which the alien can meet by showing that a court of competent jurisdiction vacated the conviction.  This returns the burden to ICE to prove, again by clear and convincing evidence, that the conviction remains valid for immigration purposes because, for example, it was set aside for immigration or rehabilitative purposes.

The court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) involved a situation in which ICE met its burden, not a case where the alien failed to meet his.  In Sanusi, as in Pickering, the burden was on ICE.