On May 28, 2019, the Attorney General (AG) certified to himself two cases, Matter of Thomas and Matter of Thompson. 27 I&N Dec. 556 (A.G. 2019). The AG has asked the parties and interested amici to “address whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled ‘vacatur,’ ‘modification,’ ‘clarification,’ or some other term-should be taken into consideration in determining the immigration consequences of the conviction.” This seems to relate to the BIA’s decisions in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (relating to vacatur of convictions), Matter of Cota, 23 I&N Dec. 849 (BIA 2005) (relating to sentence modifications), and similar cases.
In pursuing or advising on challenges to convictions or sentences, and in representing clients before EOIR and DHS, attorneys should consider factoring in the range of potential outcomes from Matter of Thomas and Matter of Thompson to try to protect client interests to the extent possible. While it is impossible to predict what the decision will say, members should consider the effects of potential holdings on their clients’ cases.