Luis Ballinas-Lucero v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS MAXIMINO BALLINAS-LUCERO, No. 17-73260 Petitioner, Agency No. v. A200-154-807 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 15, 2022 San Francisco, California Filed August 15, 2022 Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges. Opinion by Judge W. Fletcher 2 BALLINAS-LUCERO V. GARLAND SUMMARY* 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. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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 …

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