The Board of Immigration Appeals has addressed the insufficiency of a state court vacatur order, noting that the order did not specify the statute for vacatur, did not reference the allegations in the motion to vacate, and did not include any factual findings to support the vacatur order. The motion to vacate itself was not accompanied by any evidentiary support, such as sworn affidavits.
“Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings. The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.”
The Board noted in a footnote that there is a split in authority over whether DHS or the respondent bears the burden of proving the basis of a vacatur in the motion to reopen context for a deported lawful permanent resident.
The full text of Matter of Azrag can be found here: https://www.justice.gov/d9/2024-02/4073.pdf