THOMAS and THOMPSON

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Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General October 25, 2019
U.S. Department of Justice
Office of the Attorney General
(1) The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada
will no longer govern the effect of state-court orders that modify, clarify, or otherwise
alter a criminal alien’s sentence.
(2) Such state-court orders will be given effect for immigration purposes only if based on
a procedural or substantive defect in the underlying criminal proceeding; these orders
will have no effect for immigration purposes if based on reasons unrelated to the merits
of the underlying criminal proceeding, such as rehabilitation or the avoidance of
immigration consequences.
BEFORE THE ATTORNEY GENERAL
On May 28, 2019, I directed the Board of Immigration Appeals (“Board”)
to refer this case for my review and invited the parties and interested amici
to submit briefs addressing relevant questions. Matter of Thomas & Matter
of Thompson, 27 I&N Dec. 556 (A.G. 2019).
For the reasons set forth in the accompanying opinion, I overrule the
Board’s decisions in Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005);
Matter of Song, 23 I&N Dec. 173 (BIA 2001); and Matter of Estrada,
26 I&N Dec. 749 (BIA 2016). 	The tests described in those cases will no
longer govern the effect of state-court orders that modify, clarify, or
otherwise alter a criminal alien’s sentence. 	Instead, for reasons similar to
those explained in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d
on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), such
state-court orders will be given effect for immigration purposes only when
the orders are based on a procedural or substantive defect in the underlying
criminal proceeding. 	These state-court orders will have no effect for
immigration purposes when based on reasons unrelated to the merits of the
underlying 	criminal 	proceeding, 	such 	as 	rehabilitation 	or 	immigration
hardship.
Accordingly, I vacate the decisions below and remand these cases to the
Board to reassess whether the relevant state-court sentence alterations should
be effective for purposes of federal immigration law.

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Aliens 	convicted 	of 	crimes 	in 	state 	court 	may 	face 	immigration
consequences based on the nature of the conviction and the length of the
resulting 	sentence. 	To 	avoid 	these 	consequences, 	some 	aliens 	seek
state-court 	orders 	retroactively vacating 	the conviction or 	altering the
sentence. 	At present, the Board of Immigration Appeals (“Board”) has
adopted three different tests to determine the legal effect of such state-court
orders, depending upon how the state court describes its decision.
If the order “vacates” an alien’s conviction, then the order has legal effect
if 	based 	on 	“a 	procedural 	or 	substantive 	defect 	in 	the 	underlying
proceedings,” but not if based on reasons “unrelated to the merits” such as
“rehabilitation or immigration hardships.” Matter of Pickering, 23 I&N Dec.
621, 624 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465
F.3d 263 (6th Cir. 2006). 	If the order “modifies” an alien’s sentence, then
the modification is given “full . . . faith and credit” for immigration purposes
regardless of the reason. Matter of Cota-Vargas, 23 I&N Dec. 849, 850–52
(BIA 2005); see also Matter of Song, 23 I&N Dec. 173 (BIA 2001). Finally,
if the order “clarifies” an alien’s sentence, then an immigration judge
assessing the order’s effect considers several characteristics of the order,
such 	as 	whether 	the 	original 	sentencing 	order 	contained 	an 	obvious
discrepancy and whether the clarifying court had jurisdiction to enter the
order. Matter of Estrada, 26 I&N Dec. 749, 755–56 (BIA 2016). Adding to
the confusion, the classification of a state-court order as a modification or
clarification may turn on how the state court itself labels the order, not on
any objective distinctions between the two categories.
The tests articulated in Matter of Cota-Vargas, Matter of Song, and
Matter of Estrada have no basis in the text of the Immigration and
Nationality Act (“INA”), promote inconsistency in the application of the
country’s immigration laws, and fail to advance Congress’s intent to attach
immigration 	consequences 	to 	certain 	convictions 	and 	sentences.
Accordingly, those cases are overruled. Going forward, immigration courts
should apply the test articulated in Matter of Pickering in determining the
immigration consequence of any change in a state sentence, no matter how
the state court describes its order. 	Such an alteration will have legal effect
for immigration purposes when based on a procedural or substantive defect
in the underlying criminal proceeding, but not when the change was based
on reasons unrelated to the merits, such as the alien’s rehabilitation or an
interest in avoiding an immigration consequence.

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I.
A.
Congress has provided that an alien’s conviction for certain serious
crimes, which result in a sentence of imprisonment of sufficient length, shall
have consequences for an alien’s immigration status. 	Notably, the INA
defines an “aggravated felony” to include a “crime of violence” for which
“the 	term 	of 	imprisonment 	[is] 	at 	least 	one 	year,” 	see 	8 	U.S.C.
§ 1101(a)(43)(F), and an alien convicted of an aggravated felony is ineligible
for 	most 	forms 	of 	relief 	or 	protection 	from 	removal, 	see, 	e.g., 	id.
§ 1227(a)(2)(A)(iii). 	In many cases, after the Department of Homeland
Security (“DHS”) commences removal proceedings against a criminal alien,
the alien petitions a state court to alter the conviction or resulting sentence.
An alien facing removal as an aggravated felon, for example, may ask the
state court to vacate the underlying conviction entirely, or to modify, clarify,
or otherwise alter the associated sentence so that it falls below the one-year
term of imprisonment necessary to qualify as an “aggravated felony.” 	The
state court’s order may have no actual impact on the alien under state law—
in most cases, the alien has already served the term of imprisonment he seeks
to alter. The sole issue then is the impact that the conviction has under the
immigration laws.
Under existing Board precedent, the immigration consequences of such a
state-court order depend on the precise form of relief granted by the court.
First, if the state court vacates the alien’s conviction, then the Board applies
the test set forth in Matter of Pickering, 23 I&N Dec. 621. In Pickering, the
Board concluded that there is a “significant distinction” between vacaturs
based on a “procedural or substantive defect in the underlying proceedings,”
and those 	based on 	“post-conviction events, such as 	rehabilitation or
immigration hardships.” 	Id. at 624. 	The former circumstance calls into
question whether the original conviction was valid, but the latter does not.
Hence, under Pickering, “if a court with jurisdiction vacates a conviction
based on a defect in the underlying criminal proceedings, the respondent no
longer has a ‘conviction’ as that term is defined in the INA. If, however, a
court vacates a conviction for reasons unrelated to the merits of the
underlying criminal proceedings, [then] the respondent remains ‘convicted’
for immigration purposes.” Id.
By contrast, if the state court modifies the alien’s sentence, rather than
vacating the alien’s conviction, then the Board follows the rule set forth in
Matter of Song, 23 I&N Dec. at 173–74, and Matter of Cota-Vargas, 23 I&N
Dec. 	at 	851–52. 	Under 	those 	decisions, 	the 	immigration 	judge 	will

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automatically give full faith and credit to the state court order, regardless of
the reason for the modification. 	In Matter of Song, the respondent was
originally sentenced to a term of imprisonment of one year, but subsequently
petitioned a state court to resentence him to a term of imprisonment of 360
days. 23 I&N Dec. at 173–74. Finding the situation analogous to one where
a state court had deemed the alien’s initial sentence “to have been illegal”
and thus regarding it “as void and of no force and effect,” see Matter of
Martin, 18 I&N Dec. 226, 227 (BIA 1982), the Board concluded that “the
offense no longer [fell] within the definition of an ‘aggravated felony’ in [the
INA], and the respondent [was] not removable.” 	Matter of Song, 23 I&N
Dec. at 174. Elaborating upon that reasoning in Matter of Cota-Vargas, the
Board, over a dissent, held that “a modified or reduced sentence is recognized
as valid for purposes of the immigration law without regard to the trial court’s
reasons for effecting the modification or reduction.” 23 I&N Dec. at 849.
Finally, if the state court “clarifies” an alien’s sentence, then the Board
considers the characteristics of the order discussed in Matter of Estrada,
26 	I&N 	Dec. 	749. 	There, 	the 	respondent 	initially 	had 	received 	a
twelve-month sentence, but it was not clear whether the sentence was for
“probation” or for a “probated term of imprisonment”—only the latter of
which would have counted as a term of imprisonment under the INA. The
respondent successfully petitioned the state court to “[c]larify[]” that the
sentence was solely for probation. 	See id. at 755. 	In deciding whether to
give 	effect 	to 	the 	order, 	the 	Board 	considered 	several 	characteristics
previously identified as relevant by the Eleventh Circuit. 	See id. (citing
Herrera v. U.S. Att’y Gen., 811 F.3d 1298 (11th Cir. 2016); United States
v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013)). 	These characteristics
include 	whether 	the 	original 	sentencing 	order 	contained 	an 	obvious
discrepancy; whether the original judge was the same as the clarifying judge;
whether a significant period of time had passed between the original
sentencing and the clarification; and whether the clarifying court had
jurisdiction to enter the clarification. Id. at 755–56. The Board then observed
that, 	in 	the 	case 	before 	it, 	the 	alien’s 	original 	sentencing 	order 	was
legitimately unclear and the clarifying order had been issued by the same
judge who had initially sentenced the alien. Id. For these reasons, the Board
gave effect to the order and concluded that the alien was not removable. Id.
at 756.
Taken together, these Board decisions establish three distinct tests
governing 	the 	immigration 	consequences 	of 	state-court 	orders 	that
retroactively alter a criminal conviction or sentence. 	These tests are
inconsistent with each other, and they cause similarly situated aliens to

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experience disparate outcomes under the immigration laws. 	The two cases
in this matter demonstrate this inconsistency.
B.
1.
In Matter of Michael Vernon Thomas, the respondent, a citizen of
Trinidad and Tobago, had been living in the United States as a lawful
permanent resident since 1977. 	In 2001, a Georgia state court convicted
Thomas of family violence battery, see Ga. Code Ann. § 16-5-23.1(f), and
sentenced him to a term of imprisonment of twelve months. In 2016, DHS
charged Thomas as removable as an aggravated felon because he had been
convicted of a “crime of violence” for which the “term of imprisonment
[was] at least one year.” See 8 U.S.C. § 1101(a)(43)(F). Thomas conceded
before an immigration judge that his conviction constituted grounds for
removal, and the immigration judge ordered Thomas removed.
While Thomas’s appeal was pending, he petitioned a Georgia state court
to alter his criminal sentence. 	Thomas did not allege any procedural or
substantive defect in the original criminal proceeding, which occurred over
fifteen years before, but upon the consent of the prosecution, the state court
issued an order stating, “Defendant’s sentence in the above matter is hereby
clarified to reflect that Defendant was sentenced to a cumulative term of
11 months and 28 days of probation.” 	The Board then remanded for the
immigration judge to review the impact of the consent order.
The immigration judge declined to credit the order, and the Board
affirmed. 	Because the order “clarified” Thomas’s sentence, the Board
considered the characteristics of the order identified as relevant in Matter of
Estrada. 	The Board observed that—in contrast to the situation of the alien
in that case—Thomas’s original sentencing order was clear; a significant
period of time (approximately fifteen years) had passed between the original
sentence and the clarification; and the state-court judge clarifying the
sentence differed from the original sentencing judge. 	The Board thus
declined to credit the “clarification” of Thomas’s sentence, and he was
deemed removable.
2.
In Matter of Joseph Lloyd Thompson, the respondent, a citizen of
Jamaica, was lawfully admitted to the United States in 1987. 	In 2012, a
Georgia state court convicted Thompson of family violence battery, see Ga.

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Code Ann. § 16-5-23.1(f), and sentenced him to a term of imprisonment of
twelve months. 	As with Thomas, in 2017, DHS charged Thompson as
removable as an aggravated felon, because had had been convicted of a
“crime of violence” for which the “term of imprisonment [was] at least one
year.” See 8 U.S.C. § 1101(a)(43)(F).
In March 2018, while the removal charges were pending, Thompson filed
a “Motion to Modify Sentence” in Georgia state court seeking to reduce his
sentence to eleven months and twenty-seven days. 	Thompson did not
identify any defect in the original criminal proceeding, but the court granted
the motion the same day. Before the immigration judge, Thompson admitted
that he had been convicted of a crime of violence, yet argued that his
modified sentence did not amount to a term of imprisonment of at least one
year.
After the immigration judge rejected Thompson’s argument, the Board
reversed on appeal. 	The Board acknowledged that there were questions
concerning whether the Georgia state court had jurisdiction to issue the order
and that the timing of the order suggested that it may have been issued to
affect the immigration court proceeding. But under Matter of Cota-Vargas,
the Board concluded that it must “give full effect” to the modified sentence.
Thus, in contrast with Matter of Thomas, the Board gave effect to the post-
sentencing state-court order and concluded that Thompson was no longer
removable.
3.
Both Thomas and Thompson were convicted of the same state law
offense, were charged with removability on the same ground, and petitioned
the state courts to alter their sentences without alleging any procedural or
substantive defects in the original proceeding. 	Yet these similarly situated
aliens faced markedly divergent consequences. 	Relying on a semantic
distinction between a “clarification” and a “modification,” the Board found
that Thomas was removable but Thompson was not. I certified these cases
to address these inconsistencies and to clarify the appropriate treatment under
the INA. See 27 I&N Dec. 556 (A.G. 2019).1
1 After I certified these cases for my review, Thomas filed a “Motion for Production”
asserting that the Due Process Clause entitles him to a chance to respond to any “briefing,
memoranda, or other documents” that might influence the decision in his case. The motion
is denied. Thomas has received DHS’s briefs in these matters, and he had a full and fair
opportunity to raise his own arguments and respond to any other party’s arguments through
his own initial and reply brief.

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II.
The INA assigns clear immigration consequences to an alien who has
been convicted and sentenced for a state crime, yet the Board has adopted
multiple tests that permit state courts to change those results well after the
fact. 	Although a state court may alter a state conviction for appropriate
reasons under state law, the state court does not have the authority to make
immigration-law determinations. In view of these considerations, I conclude
that the Pickering test should apply to state-court orders that modify, clarify,
or otherwise alter the term of imprisonment or sentence associated with a
state-court conviction. As a result, such alterations will have legal effect for
immigration purposes if they are based on a procedural or substantive defect
in the underlying criminal proceeding, but not if they are based on reasons
unrelated to the merits, such as rehabilitation or immigration hardship.
Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore
be overruled.
A.
1.
In considering whether a state-court order that modifies, clarifies, or
otherwise alters a “term of imprisonment or a sentence” should change the
immigration consequences of the original sentence, we begin with the text of
the statute. 	E.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). 	The INA
defines “conviction” and a “term of imprisonment or a sentence” as follows:
(A) The term “conviction” means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication of
guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect
to an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of

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the imposition or execution of that imprisonment or sentence in whole
or in part.
8 U.S.C. § 1101(a)(48) (emphasis added). 	An alien plainly has been
convicted under the INA when a court has entered “a formal judgment of
guilt,” and he has received a sentence when the court orders a “period of
incarceration or confinement,” no matter whether that sentence is executed.
The question then is whether the state court’s subsequent alteration of a
“conviction” or a “sentence” changes those facts under the INA. Neither the
INA nor the associated regulations provide further guidance on this point,
but the statute’s history helps illuminate the meaning of the phrase. Congress
amended the INA to define “conviction” following the Board’s decision in
Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). There, the Board established
a rule that “a conviction will be found for immigration purposes” where:
(1) a judge or jury has found the alien guilty or he has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint
on the person’s liberty to be imposed (including but not limited to
incarceration, 	probation, 	a 	fine 	or 	restitution, 	or 	community-based
sanctions 	such 	as 	a 	rehabilitation 	program, 	a 	work-release 	or
study- release program, revocation or suspension of a driver’s license,
deprivation 	of 	nonessential 	activities 	or 	privileges, 	or 	community
service); and
(3) a judgment or adjudication of guilt may be entered if the person
violates 	the 	terms 	of 	his 	probation 	or 	fails 	to 	comply 	with 	the
requirements 	of 	the 	court’s 	order, 	without 	availability 	of 	further
proceedings regarding the person’s guilt or innocence of the original
charge.
Id. at 551–52. Under Ozkok’s definition of “conviction,” “it was possible for
a defendant to plead nolo contendere, obtain a suspended sentence, or enter
a rehabilitation program on probation—so long as the court stopped short of
a formal adjudication of guilt—without having the offense be considered a
conviction for purposes of immigration laws.” Francis v. Gonzales, 442 F.3d
131, 140 (2d Cir. 2006). Applying this definition “required an individualized
analysis of the particular procedures of different state penal systems to
determine whether a person had been ‘convicted.’” Id.

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Congress rejected the third element of Ozkok in enacting 8 U.S.C.
§ 1101(a)(48) as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). 	The statute incorporated the first
two elements of Ozkok’s definition of “conviction,” but eliminated the third,
which had excluded certain suspended sentences. See Pub. L. No. 104-208,
div. C, § 322, 110 Stat. 3009, 3009-546, 3009-628 (1996); see also H.R. Rep.
No. 104-828, at 224 (Conf. Rep. 1996) (confirming this textual interpretation
by observing that the IIRIRA “broaden[ed] the scope of the definition of
‘conviction’ beyond that adopted by the Board of Immigration Appeals in
Matter of Ozkok,” which had not gone “far enough to address situations
where a judgment of guilt or imposition of sentence [was] suspended.”);
Francis, 442 F.3d at 141 (collecting cases acknowledging “that in enacting
IIRIRA, Congress specifically and deliberately abrogated the Ozkok test”).
In enacting section 1101(a)(48), Congress made clear that immigration
consequences should flow from the original determination of guilt. 	In
addition, Congress ensured uniformity in the immigration laws by avoiding
the need for immigration judges to examine the post-conviction procedures
of each State. 	See Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir. 2007)
(“Interpreting the new definition, the BIA identified two primary aims that it
believed Congress sought to accomplish: to focus the conviction inquiry on
the ‘original determination of guilt’ and to ‘implement a uniform federal
approach.’” (quoting Matter of Roldan–Santoyo, 22 I&N Dec. 512, 521–22
(BIA 1999)); Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st Cir. 2000)
(explaining the “emphasis that Congress placed on the original admission of
guilt” when enacting the new definition of “conviction” (emphasis in
original)); id. at 305 (explaining that Matter of Ozkok “failed to produce . . .
uniformity and Congress stepped in to fill the void”); see also, e.g.,
Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262, 1270 (11th Cir. 2004).
This statutory history confirms that, under paragraph (A), an alien’s
original adjudication or admission of guilt establishes the fact of his
“conviction.” 	The remainder of the definition, paragraph (B), similarly
contains language making clear that the length of a “term of imprisonment
or a sentence” is calculated “regardless of any suspension of the imposition
or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C.
§ 1101(a)(48)(B) 	(emphasis 	added). 	The 	length 	of 	a 	sentence 	for
immigration purposes thus ignores “suspensions” (whether occurring at the
time of sentencing or thereafter), suggesting that other post-sentencing
events—such as modifications or clarifications—should not be relevant
under the immigration laws. Accordingly, the phrase “term of imprisonment
or a sentence” in paragraph (B) is best read to concern an alien’s original

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criminal sentence, without regard to post-sentencing alterations that, like a
suspension, merely alleviate the impact of that sentence.
This reasoning, which supports the Pickering test, should likewise extend
to all state-court modifications, clarifications, and other alterations of a
criminal sentence. 	If the original sentence was altered because of a legal
defect, then the sentence was not legally effective, and there is no valid
sentence to which immigration consequences can attach. 	The original
sentence—because of the defect—should not have been entered in the first
place. 	If, in contrast, a state court later alters an earlier sentence for
rehabilitative or immigration reasons, then the immigration consequences of
that sentence under section 1101(a)(48) remain unchanged because section
1101(a)(48) addresses the alien’s original term of imprisonment or sentence.
See Saleh, 495 F.3d at 24 (explaining that “Congress did not intend to allow
an alien to escape [immigration] consequences by means of a state vacatur
that was not on the merits”).
Said differently, Congress has determined that an alien who is convicted
of a crime that is sufficiently serious to warrant a significant sentence should
be subject to removal. 	Later alterations to that sentence that do not correct
legal defects, do not change the underlying gravity of the alien’s action. They
accordingly do not affect Congress’s judgment as to whether that alien
should be removed. 	Such an alteration therefore should have no effect for
purposes of the immigration laws. 	Cf. id. at 25 (“When a conviction is
amended nunc pro tunc solely to enable a defendant to avoid immigration
consequences, in contrast to an amendment or vacatur on the merits, there is
no reason to conclude that the alien is any less suitable for removal.”).
Applying the Pickering test to all sentence alterations thus ensures that aliens
who have committed significant crimes, as identified by Congress, do not
later avoid the immigration consequences of those actions.
Furthermore, the application of a single test to state-court sentence
alterations promotes uniformity in the law. 	In the cases currently under
review, 	for 	example, 	applying 	the 	Pickering 	test 	should 	avoid 	the
inconsistent results that apply to the two similarly situated respondents. 	If
neither state court altered the respondent’s sentence on the basis of “a
procedural 	or 	substantive 	defect 	in 	the 	underlying 	proceedings,” 	see
Pickering, 23 I&N Dec. at 624, then the Pickering test would dictate the same
immigration consequence for both respondents.
In addition, applying the Pickering test to all forms of state-court sentence
alterations resolves inconsistencies among the states’ “crazy quilt of . . .
widely 	disparate 	state 	rehabilitative 	and 	diversionary 	arrangements.”
Herrera-Inirio, 208 F.3d at 305; see also, e.g., Pinho v. Gonzales, 432 F.3d
193, 205 (3d Cir. 2005) (observing that the Board in the past has been

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“bedeviled by the diversity of state rehabilitative programs and the resulting
difficulty 	in 	fashioning 	a 	uniform 	national 	immigration 	policy”);
Resendiz-Alcaraz, 383 F.3d at 1269 (noting “the vagaries of state law”
related to the alteration of a conviction). 	The Pickering test eliminates the
need to assess this broad array of state procedures. 	If the state court alters
the alien’s sentence because of a procedural or substantive defect in the
original proceeding, then the alteration has legal effect—regardless of the
label the state court placed on the order. 	If the state court alters an alien’s
sentence on the basis of something other than a procedural or substantive
defect, then the alteration has no effect and the immigration judge need
inquire no further. Moreover, similarly situated aliens in different states will
face similar consequences. Whether one state affords more or less generous
mechanisms for altering a sentence for rehabilitative purposes will be
irrelevant. Only those alterations based on legal defects will receive effect.
The country’s immigration system will thereby achieve more uniform
results.
2.
In reaching this conclusion, I have considered the Board’s reasons for
adopting the Cota-Vargas and Estrada tests, but I find them unpersuasive.
In Matter of Song, the Board offered little analysis before giving full effect
to state-court modifications, and it did not ground that rule in any facet of the
text of the INA. See 23 I&N Dec. 173. In Matter of Cota-Vargas, the Board
acknowledged that the “language and purpose of section 101(a)(48)(A)”
support applying the Pickering rule to sentence alterations, see 23 I&N Dec.
at 852, but found it relevant that paragraph (B) addresses “suspensions” and
not “modifications.” Based upon this statutory silence, the Board inferred a
congressional intent to credit state-court modifications that were unrelated to
the merits of a criminal proceeding. See id. Yet paragraph (A)’s definition
of “conviction” is equally silent about “vacaturs,” and the Board nonetheless
determined in Matter of Pickering that vacaturs unrelated to the merits will
not have immigration consequences. 	See 23 I&N Dec. at 624. 	Paragraph
(A) and paragraph (B) simply do not address vacaturs, modifications, or
clarifications. 	This silence, however, provides no reason to depart from
Congress’s focus on the alien’s original conviction and sentence in either of
those provisions.
I likewise do not believe that the Estrada test finds any more support in
the INA. 	There, the Board considered a number of characteristics in
assessing the effect of a clarification, yet none of them flows directly from
the text of the INA itself, see 26 I&N Dec. 755–56, and reliance on such

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varied considerations does not promote uniformity, cf. Hertz Corp. v. Friend,
559 U.S. 77, 91–92 (2010) (observing that “highly general multifactor
tests . . . [had] failed to achieve a nationally uniform interpretation of federal
law”). Moreover, the Estrada test may give effect to state-court clarifications
that do not call into question the validity of a criminal alien’s original
sentence. For example, the opinion in Estrada suggests that a “clarification”
entered shortly after the original sentence by the same judge who issued the
sentence could be given effect for immigration purposes, see 26 I&N Dec.
755–56, even if the alien who sought the clarification did so just to avoid
immigration consequences. 	The Estrada test thus undermines Congress’s
decision to attach immigration consequences to sentences of a certain length.
B.
In extending the Pickering test to all forms of sentence alterations, I have
also considered and rejected several additional arguments pressed by the
respondents.
1.
The respondents first argue that requiring immigration judges to assess
the reasons that a state court altered a criminal alien’s sentence would require
them to act as fact-finders in matters of state criminal law with which they
have little 	familiarity. 	The 	Pickering 	test, however, 	already requires
immigration 	judges 	to 	assess 	the 	administrative 	record 	and 	make
determinations about the reasons that certain state-court orders were entered.
See 	23 	I&N 	Dec. 	at 	625 	(examining 	“the 	law 	under 	which 	the
[post-conviction] court issued its order,” “the terms of the order itself,” and
“the reasons presented by the respondent in requesting that the court vacate
the conviction”). The extension of the Pickering test to state-court sentence
alterations raises no new concerns about the role of immigration judges in
assessing the record.
Moreover, the evidence on which immigration judges will rely when
assessing state-court sentence alterations will typically be readily available
in the record and should require little interpretation of state law. 	The
application of the Pickering test demonstrates as much, as adjudicators
applying it frequently determine whether a vacatur is valid for immigration
purposes by assessing the text of the order of vacatur itself or the alien’s
motion requesting the vacatur. See, e.g., Al-Najar v. Mukasey, 515 F.3d 708,
716 (6th Cir. 2008) (declining to give effect to a vacatur because of “the
absence of any substantive legal basis cited in [the alien’s] motion”); Sanusi

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v. Gonzales, 474 F.3d 341, 347 (6th Cir. 2007) (declining to give effect to a
vacatur because “[a] colorable legal ground for the granting of a writ of
coram nobis was not raised in [the alien’s] state court petition”); Alim
v. Gonzales, 446 F.3d 1239, 1251 (11th Cir. 2006) (giving effect to a vacatur
after examining the “state court order” and the alien’s “coram nobis petition”
to determine “the reason underlying the state court’s decision to vacate” the
conviction). 	The 	availability 	of 	such 	evidence 	thus 	indicates 	that
immigration judges should not need to wade into the intricacies of state
criminal law in applying this opinion’s rule.
2.
The respondents next contend that the Full Faith and Credit Act,
28 U.S.C. § 1738 (the “Act”), requires that immigration judges and the Board
give effect to state-court alterations of a criminal sentence, regardless of the
reasons 	for 	that 	alteration. 	The 	respondents 	contend 	that 	Matter 	of
Cota-Vargas supports this argument because, although that decision did not
cite the Act, it concluded that a state court’s “decision to modify or reduce
an alien’s criminal sentence nunc pro tunc is entitled to full faith and credit
by the Immigration Judges and the Board of Immigration Appeals.” 23 I&N
Dec. at 849 (emphasis added). 	This argument fails for two independent
reasons.
First, Congress may define terms such as “conviction” for the purposes
of federal law in a way that differs from the definition attached to such terms
by state courts. 	Thus, in deciding whether a vacated conviction remains
effective for immigration purposes, an immigration judge or the Board
merely applies and upholds the definition of conviction in the INA. 	The
adjudicator is not reevaluating or otherwise questioning the validity of the
state-court judgment. The adjudicator accordingly does not violate the Full
Faith and Credit Act. 	See Saleh, 495 F.3d at 26 (“[T]he BIA is simply
interpreting how to apply Saleh’s vacated State conviction for receiving
stolen property to the INA and is not refusing to recognize or relitigating the
validity of Saleh’s California state conviction. 	The full faith and credit
statute is not thereby violated.”); Herrera-Inirio, 208 F.3d at 307 (“Neither
the Full Faith and Credit Clause nor the statutory overlay ‘purports to prevent
federal legislative authorities from writing federal statutes that differ from
state statutes or from attaching, to words in a federal statute, a meaning that
differs from the meaning attached to the same word when used in a statute
enacted by a state.’” (quoting Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992)
(Breyer, J.))).

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The same reasoning applies to sentence alterations. 	In applying the
Pickering test to these state-court orders, the immigration judge is simply
determining the meaning of the phrase “term of imprisonment or a sentence”
in the INA for the purpose of enforcing federal immigration law. Hence, for
the same reason that interpreting the term “conviction” in accordance with
the Pickering test “does not infract applicable principles of full faith and
credit,” see Herrera-Inirio, 208 at 307, applying the Pickering test to the
phrase “term of imprisonment or a sentence” likewise does not implicate,
much less violate, the Full Faith and Credit Act.
The respondents attempt to avoid this result on the ground that Matter of
Pickering’s interpretation of “conviction” is required by paragraph (A) of
8 U.S.C. § 1101(a)(48), whereas paragraph (B) does not mandate a similar
result for the phrase “term of imprisonment or a sentence.” 	As discussed
above, however, I believe that the text and history of this provision suggest
that the two paragraphs are properly construed together, such that paragraph
(A)’s focus on the original criminal proceeding requires paragraph (B) to be
similarly interpreted. Moreover, just as paragraph (B) does not specifically
address the effect of state-court “modifications,” “clarifications,” or other
alterations of a sentence, paragraph (A) does not specifically address the
effect of state-court “vacaturs” of a conviction. 	Both paragraphs, in other
words, are silent on the effect of state-court orders, so there is no express
textual basis for differentiating between the paragraphs in deciding whether
to apply the Full Faith and Credit Act.
The respondents’ argument also fails for the second reason that the Full
Faith and Credit Act does not apply to federal agencies. By its own terms,
that statute provides that “[a]cts, records and judicial proceedings . . . shall
have the same full faith and credit in every court within the United States and
its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.” 	28 U.S.C.
§ 1738 (emphasis added). 	The text of the Act is thus clear: 	it applies to
“courts”—but not to “agencies”—and does not require agency officials such
as immigration judges or the Board to give effect to state-court orders. See
Perez v. Cissna, 914 F.3d 846, 857 (4th Cir. 2019) (“[T]he Act does not apply
to agencies. The text of the Act is clear. . . . The [United States Citizenship
and Immigration Services (“USCIS”)] is not a court. 	Thus, the plain
language of 28 U.S.C. § 1738 establishes that it does not apply to [USCIS].”);
see also Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 799 (5th Cir.
2000) (explaining that the “plain language of [the Act] establishes that it does
not apply” to an agency); N.L.R.B. v. Yellow Freight Sys., Inc., 930 F.2d 316,

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320 (3d Cir. 1991) (holding that “federal administrative agencies are not
bound by section 1738 because they are not ‘courts’”).2
The foregoing observations also dispose of the respondents’ broader
argument 	that—even 	apart 	from 	the 	Act—an 	immigration 	judge’s
assessment of state-court sentence alterations would contravene principles of
federalism and comity. 	Contrary to respondent Thompson’s argument, an
immigration 	judge’s 	evaluation 	of 	the 	reasoning 	behind 	a 	state-court
alteration 	of 	an 	alien’s 	sentence 	does 	not 	“arrogate” 	to 	the 	federal
government “the power to determine the effectiveness of state court orders.”
Instead, as explained above, the immigration judge in such a case simply
determines the effect of that order for the purposes of federal immigration
law. See Matter of Velasquez-Rios, 27 I&N Dec. 470, 474 (BIA 2018) (“We
must use Federal law, rather than State law, to determine the immigration
consequences of [a] respondent’s . . . conviction.” (emphases in original)).
The state-court order itself remains effective and unchallenged for all other
purposes, and there accordingly exists no intrusion on state law of the sort
that principles of federalism and comity are designed to prevent.
3.
The respondents finally argue that, in determining the impact that a
state-court alteration of a sentence should have on the immigration laws, the
Attorney 	General 	should 	proceed 	through 	rulemaking 	rather 	than
adjudication. But given that the Board itself adopted its prior tests precisely
in the context of administrative adjudications, I do not believe that there is a
need for a regulation here. 	Indeed, Supreme Court precedent confirms my
authority as agency head to proceed by adjudication, and my authority here
derives from the text of the relevant provisions in the INA.
The Supreme Court has long recognized that agencies may decide
whether to announce reinterpretations of a statute through rulemaking or
through adjudication. 	See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294
(1974) (“[T]he choice between rulemaking and adjudication lies in the first
2 	Two Board opinions suggest that 28 U.S.C. § 1738 nonetheless applies to federal
agencies. See Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006) (“In the absence of a
statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full
faith and credit to this State court judgment.”); Matter of Rodriguez-Ruiz, 22 I&N Dec.
1378, 1380 (BIA 2000) (“We will instead accord full faith and credit to this state court
judgment. See 28 U.S.C. § 1738.”). 	The plain text of the statute and the federal court
precedent cited above indicate that these cases were wrongly decided. 	These cases
accordingly are overruled to the extent that they suggest that the Full Faith and Credit Act
applies to proceedings before immigration judges and the Board.

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instance 	within 	the 	[agency’s] 	discretion.”); 	see 	also 	Velasco-Giron
v. Holder, 773 F.3d 774, 779 (7th Cir. 2014) (explaining that agencies “can
choose 	freely 	between 	rules 	and 	standards, 	between 	rulemaking 	and
adjudication”); Gao v. Holder, 595 F.3d 549, 556 (4th Cir. 2010) (“[I]t is a
basic 	principle 	of 	administrative 	law 	that 	‘the 	choice 	made 	between
proceeding by general rule or by individual, ad hoc litigation is one that lies
primarily in the informed discretion of the administrative agency.’” (quoting
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). 	Indeed, in the decades
since Bell Aerospace, the Supreme Court “has not even suggested that a court
can constrain an agency’s choice between rulemaking and adjudication.’”
Velasco-Giron, 773 F.3d at 779 (emphasis added) (quoting Richard J. Pierce,
Jr., I Administrative Law Treatise § 6.9 at 510 (5th ed. 2010)). And agencies
retain their discretion even when announcing interpretations that may
conflict with prior decisions. 	See Chisholm v. F.C.C., 538 F.2d 349, 364
(D.C. Cir. 1976) (“[A]n administrative agency is permitted to change its
interpretation of a statute, especially where the prior interpretation is based
on error, no matter how longstanding.”); see also id. at 365 (“The original
interpretation of the [statute] was . . . established by adjudication; thus
reversal by adjudication seems particularly appropriate here.”). I accordingly
conclude that it is appropriate to address these Board precedents in the
context of an administrative adjudication, and there is no legal requirement
to do so by regulation.
C.
Finally, although I did not request briefing on the subject, the parties to
this case have addressed which side should carry the burden of proof when it
comes to establishing the state court’s reason for altering a sentence under
the Pickering test. The Board and the courts of appeals have considered this
issue in applying Matter of Pickering to vacaturs of convictions, and they
have allocated the burden in different ways, depending on the procedural
posture of the case at hand. 	See, e.g., Andrade-Zamora v. Lynch, 814 F.3d
945, 949 (8th Cir. 2016) (the alien bears the burden to prove that a conviction
was vacated because of a procedural or substantive defect when applying for
cancellation of removal); Barakat v. Holder, 621 F.3d 398, 403–04 (6th Cir.
2010) (the government bears the burden to prove that a conviction was
vacated for reasons other than a procedural or substantive defect when
seeking to establish that an alien is removable); Rumierz v. Gonzales, 456
F.3d 31, 37 (1st Cir. 2006) (the alien bears the burden to prove that a
conviction was vacated because of a procedural or substantive defect when
seeking to reopen removal proceedings).

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The 	courts 	of 	appeals 	have 	sometimes 	invoked 	a 	burden-shifting
framework to describe the burden of proof, e.g., Barakat, 621 F.3d at 403
(describing how “the burden of production may shift during removal
proceedings”), but regardless of how the issue is described, the bottom line
remains the same: When the government alleges that an alien is deportable,
the government bears the burden of proving deportability by clear and
convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). And when an alien applies
for relief from removal, the alien bears the burden to prove that he meets the
eligibility requirements for the specific form of relief requested. 	Id.
§ 1229a(c)(4). 	After all of the evidence has been proffered by the parties,
the immigration judge must weigh that evidence and determine whether the
party bearing the burden of proof has carried its burden.
The parties to this appeal dispute how these principles should apply in the
context of sentence alterations, but I did not request briefing on this issue.
See 27 I&N Dec. 556. In the absence of such a request, I decline to address
the burden-shifting issue anew and thus leave undisturbed the existing body
of law applying the Pickering test.
III.
For 	the 	reasons 	explained, 	the 	Board’s 	decisions 	in 	Matter 	of
Cota-Vargas, Matter of Song, and Matter of Estrada are overruled. The tests
described in those cases will no longer govern the immigration-related
effects of state-court orders that modify, clarify, or otherwise alter a criminal
alien’s sentence. 	Instead, such state-court orders will be given effect for
immigration purposes only if based on a procedural or substantive defect in
the underlying criminal proceeding. 	These orders will have no effect for
immigration purposes if based on reasons unrelated to the merits of the
underlying criminal proceeding, such as rehabilitation or the avoidance of
immigration consequences.
Because the Board’s decisions in Matter of Michael Vernon Thomas and
Matter of Joseph Lloyd Thompson were based on these earlier precedents,
I vacate the Board’s decisions below and remand these cases to the Board to
assess the state-court alterations in light of the Pickering test. I do not doubt
that it would be the rare case where a state court’s alteration of an old
sentence by three or four days (as in respondents’ cases) would reflect a
necessary remedy for a fundamental legal defect, rather than an exercise of
the trial judge’s sentencing discretion. 	But insofar as the parties litigated
these cases under the earlier precedents, I do not wish to foreclose any
available arguments in that regard. 	On remand, the Board may review the
evidence in the record, and consider any appropriate requests to reopen the

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record, to determine whether the state-court alterations in each of these cases
arose as a result of a procedural or substantive defect, or for some other
reason.