De Jesus-Platon: Winning a California Vacatur Is Not the Same as Proving It

You went back to criminal court, and you won. A California judge let you withdraw your guilty plea and set aside the one conviction keeping you from cancellation of removal. You send the proof to the Board of Immigration Appeals. The government does not even file a response brief. You still lose.

That happened to a man from Mexico, and the reason comes down to what his papers left out. His evidence said his conviction was vacated under California Penal Code section 1473.7, without saying which part of section 1473.7. He did not give the Board the motion that won the vacatur. The Board could not tell why the state judge acted, and proving why was his job.

The case is Matter of Leobardo de Jesus-Platon, 29 I&N Dec. 7, Interim Decision 4086 (BIA Jan. 17, 2025), designated as precedent by the Acting Attorney General on January 31, 2025. The answer it gives a California reader is uncomfortable and fixable. A section 1473.7 vacatur can erase a conviction for immigration purposes. But the immigration court has to be able to see the ground, in the order or in the motion. The time to make sure of that is before the state judge signs.

One conviction stood in the way

In 2012 the man was convicted in California of making criminal threats under Penal Code section 422. It was his only conviction, and it came more than 16 years after he entered the United States. He asked an immigration judge for cancellation of removal, the form of relief that lets a long-term resident without a green card stay and get one. The judge found the conviction disqualifying: a crime involving moral turpitude for which a sentence of one year could be imposed.

The Board agreed and he went to the Ninth Circuit. The court sent the case back because of a change in California law. Section 18.5 of the Penal Code had lowered the maximum county-jail term for misdemeanors to 364 days, one day short of the federal line. If that change counted, his conviction no longer disqualified him. The case returned to the immigration judge, who ruled against him again on December 19, 2019.

He appealed. A little more than five years passed before the Board decided that appeal. Somewhere in those years, a California court granted him relief under Penal Code sections 1016.5 and 1473.7 and allowed him to withdraw his plea. He told the Board and asked it to send the case back. The Department of Homeland Security filed no response brief.

California’s 364-day fix did not reach back

The Board first disposed of everything except the vacatur, and that matters, because it left the vacatur as his only way out.

The federal statute calls for what the Board termed “a backward-looking inquiry into the maximum possible sentence.” When he was convicted, the maximum was one year. A later California amendment, even a retroactive one, did not change that answer. The Board had said so in Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018), and the Ninth Circuit agreed in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021): Federal immigration law “cannot be altered or contradicted retroactively by state law actions.”

That same decision answered his Tenth Amendment and preemption arguments. California remains free to shorten its own sentences for its own purposes. The ruling, the Ninth Circuit said, “has no bearing on” that. It governs only what the federal statute means. He pointed to two older Board decisions honoring state-court sentence changes, Matter of Song and Matter of Cota-Vargas. Those involved a different kind of order, and the Attorney General has overruled both.

His attack on the conviction itself failed too. Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), held that section 422 is a crime involving moral turpitude, and the Board found that Flores-Vasquez v. Garland, 80 F.4th 921 (9th Cir. 2023), kept that reasoning intact: The statute requires both an evil or malicious intent and actual, substantial harm to the victim. Nor did it help that he had not finished his sentence when section 18.5 took effect, or that the conviction came so long after he arrived.

What section 1473.7 is for

As the Board quoted it in January 2025, section 1473.7 lets a person who is no longer in criminal custody ask a California court to vacate a conviction or sentence on three grounds:

• Subdivision (a)(1). The conviction “is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” The finding “may, but need not, include a finding of ineffective assistance of counsel.”
• Subdivision (a)(2). “Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.”
• Subdivision (a)(3). The conviction or sentence “was sought, obtained, or imposed on the basis of race, ethnicity, or national origin in violation of” subdivision (a) of Penal Code section 745.

Subdivision (a)(1) is the one tied to deportation risk, and it has a trap in its wording. It talks about immigration consequences. That invited a misreading. Bent v. Garland, 115 F.4th 934 (9th Cir. 2024), arose after the Board said the provision “explicitly allows for vacatur of state convictions solely to alleviate immigration consequences.” That would have made every (a)(1) vacatur worthless in immigration court.

“That is wrong,” the Ninth Circuit answered, and the government conceded as much. The statute targets a conviction that is “legally invalid.” Immigration consequences are the subject of the error, not the reason for the relief. Claude Bent’s state-court order showed the difference. It set aside his plea because he “was unable to meaningfully understand and defend against the immigration consequences of his plea,” making the plea “involuntary” under the Fifth Amendment. The court granted vacatur, the Ninth Circuit explained, “because the plea was constitutionally deficient—not to alleviate any adverse immigration consequences.”

The other statute named in this man’s case, Penal Code section 1016.5, concerns the immigration warning a judge must give before accepting a guilty or no-contest plea to a California crime other than an infraction.

Not every California post-conviction statute comes out this way. The Ninth Circuit treats plea withdrawal for good cause under Penal Code section 1018 as a remedy for substantive and procedural defects. It has treated California’s marijuana reclassification, by contrast, as a change made “for policy reasons of rehabilitation,” as Ballinas-Lucero v. Garland, 44 F.4th 1169, 1179–80 (9th Cir. 2022), recounts. Which statute the state court used is the first thing immigration court looks at.

Federal law asks why the conviction was vacated

A state court decides whether a conviction stands under state law. Federal immigration law has its own definition of “conviction,” and under the Board’s test the question is different. The test comes from 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). The Ninth Circuit follows it. A conviction vacated because of a “procedural or substantive defect” no longer counts, Bent explains. One vacated “solely for rehabilitative reasons or reasons related to [the petitioner’s] immigration status” still does. The word “solely” matters. Immigration consequences can be part of the story without turning a legal defect into a hardship vacatur.

This can feel like a federal agency second-guessing a California judge. In this opinion the Board quoted the Attorney General’s answer: An immigration judge interprets the federal definition and is not “reevaluating or otherwise questioning the validity of the state-court judgment.” The order stays valid in California. The agency asks only what it means under the federal definition. The Ninth Circuit applied the Pickering line in Bent.

Why his order was not enough

The Board treated his request for a remand like a motion to reopen, under Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). He cleared the first hurdle: The vacatur was material and had not been available earlier. He stumbled on the second, which required a prima facie showing, meaning enough evidence that he appeared to qualify for cancellation.

The Board quoted Bent as controlling law: Section 1473.7(a)(1) “provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid.’” But Bent spoke about (a)(1). His evidence, the Board wrote, said the conviction was vacated under section 1473.7 “generally and not subsection 1473.7(a)(1) specifically.” And he did “not submit the motion for vacatur or other evidence that may reflect the applicable statutory subsection and underlying reasoning.”

So the Board held that his evidence “does not demonstrate that his conviction was vacated for a procedural or substantive defect in the underlying criminal proceedings and not for reasons of rehabilitation or immigration hardship.” It denied the remand and dismissed the appeal.

The Board made no finding that the state judge acted out of sympathy or to spare him deportation. It found that the record did not say. On this record, silence lost.

We see an argument the opinion does not address. None of the three grounds in section 1473.7(a) is rehabilitation or hardship. Each describes something wrong with the conviction: a prejudicial error, actual innocence, or racial discrimination. A lawyer can argue that the statute alone answers the Pickering question, whichever subdivision the state court used. Ballinas-Lucero supports starting there: It lists “the law under which the court issued its order” first among the evidence, and it faulted the Board because it “did not conduct any analysis of the statute.” The Board did not take that step, and a bare citation to section 1473.7 should now be expected to draw the same response.

Who must prove it depends on why you are in court

The opinion’s closing citation is easy to miss and may be the most useful thing in it. The Board compared Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), noting that the government bears the burden “in the context of removability.”

Nath involved a California order that vacated a conviction for “good cause,” with no further explanation. The conviction was the basis for removal. The Ninth Circuit put the burden on the government to show the vacatur was for rehabilitative or immigration reasons, and Bent sent the case back to ask “whether the government has met its burden.” An unexplained order hurts the government there.

Cancellation of removal runs the other way. Pereida v. Wilkinson, 592 U.S. 224 (2021), which the Board cited, held that the burden of showing the absence of a disqualifying conviction falls on the person applying for relief. Our Pereida analysis explains how an inconclusive record defeats that applicant. The Ninth Circuit carried the rule over to vacaturs in Ballinas-Lucero: “applicants for cancellation of removal bear the burden of proving not only that their convictions have been vacated, but also that the vacated convictions are not valid for immigration purposes.”

So the same unexplained order can defeat the government’s charge and also defeat your application. A person with a green card charged as deportable because of the conviction stands in a very different position from a person asking for cancellation. Before deciding how much the record needs, work out which of those people you are. Both burden rules are stated here as the Ninth Circuit applies them, and a case in another circuit needs its own check.

In the Ninth Circuit, the motion papers count

A California reader should put this decision next to Ballinas-Lucero, which the Board did not cite. Luis Ballinas-Lucero had six misdemeanor theft convictions vacated by the Orange County Superior Court under Penal Code section 1018. The court granted his unopposed motion with no explanation, and no reporter transcribed the hearing. The Board held the record “inconclusive,” finding the “absence of any statement by the court” dispositive.

“This was error,” the Ninth Circuit held, even with the burden on him. The Board considers three kinds of evidence: “(1) the law under which the court issued its order, (2) the language of the court’s order itself, and (3) the reasons provided by the noncitizen in the request for post-conviction relief.” His memorandum said he felt pressured, did not understand his options, did not speak with a lawyer and was not told the immigration consequences. Where the order was silent, the court called the memorandum’s contents “critical.” The only mention of immigration hardship tied to a legal defect: He had not understood what his plea would do.

Read together, the two decisions mark the boundary. Ballinas-Lucero had a bare order and a strong motion, and he won a remand. The Board still had to decide whether his replacement conviction barred cancellation, including whether the petty-offense exception applied, and whether he met the remaining requirements. The man in De Jesus-Platon filed proof of a vacatur under a statute cited only generally, and no motion, and he lost. The clean version is the order in Bent itself, which named section 1473.7(a)(1), called the plea involuntary under the Fifth Amendment and declared it “legally invalid.”

If the order is already final and the case is already lost

The disposition here ended the appeal. Nothing was sent back to the immigration judge. Two clocks start at the final order. A petition for review in the court of appeals is due within 30 days under 8 U.S.C. § 1252(b)(1). A motion to reopen generally gets one filing and 90 days under 8 U.S.C. § 1229a(c)(7)(A) and (C)(i).

If no exception applies, a late motion needs equitable tolling, a court’s power to excuse a missed deadline when a person pursued her rights diligently and an extraordinary circumstance stood in the way. Bent gives late filers something to work with. It held that diligence is measured from when a reasonable person would have been on notice of the error, which there was the day he received the notice to appear, and not from the 2006 plea. But Bent did not decide whether he was diligent. The court said his five-year wait after the notice to appear “may well undermine” that claim, and a dissenting judge would have denied relief for that reason. Diligence is only half of equitable tolling. Bent left to the Board whether a vacatur on constitutional grounds is the extraordinary circumstance tolling also requires. Our guide to building the reopening and diligence timeline walks through that record, and our analysis of Avila-Morales covers futile filings.

Before the order goes to immigration court

• Ask for an order that names the subdivision and the ground. Identify the subdivision the court actually used and the defect it found. For a section 1473.7(a)(1) vacatur, Bent’s order is a useful example: It identified a legally invalid, involuntary plea. The motion papers may supply the reason when the order itself is silent.
• File the whole post-conviction record. The motion, the memorandum, any declaration, the minutes and any transcript. Under Ballinas-Lucero the motion can carry a silent order. Without it, as here, there may be nothing to carry.
• Tie every fact to the plea. If family or community ties help show what you would have done had you understood the consequences, present them that way. Do not ask the court to vacate because removal would be hard on your family or because you have been rehabilitated since.
• If section 1016.5 is also a ground, explain it. Say what warning was missing, and tie it to the plea.
• If the order is already entered and says too little, get the motion papers first. They may be enough. Ask criminal counsel about a clarifying order only with care: Ballinas-Lucero notes that the test has been extended to state-court orders that “modify, clarify, or otherwise alter” a sentence, so a new order entered for immigration reasons will be examined for the same defect.
• Identify the burden before you write the brief. If you were admitted and the government says your conviction makes you deportable, hold it to its burden of proof. If the conviction blocks relief you are seeking, you must prove eligibility.
• Calendar from the final removal order. The petition for review is due in 30 days and a motion to reopen generally in 90. Start the state motion while the removal case is pending, do not wait for a better state-court order if those days are running, and keep a dated account of every step.

Later developments

Eskilian v. Bondi, 172 F.4th 682 (9th Cir. 2026), decided April 2, 2026, added to Bent on the diligence half of equitable tolling. It held that the Board abused its discretion by treating a two-year gap after section 1473.7 took effect as a lack of diligence without considering the petitioner’s actual circumstances. She was treated as stateless, and nothing in her order of supervision warned her that removal could be imminent. The court’s rule was written for people treated as stateless.

One circuit has now rejected the Pickering test for sorting vacated convictions. Yanez Piedra v. Blanche, No. 25-1258 (4th Cir. Aug. 24, 2026), declined to follow Pickering after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), ended the rule that courts defer to an agency’s reasonable reading of an unclear statute. The court found “no statutory basis for asking why the state court acted,” and held that a person whose drug conviction was vacated is no longer an “alien convicted of” that offense under 8 U.S.C. § 1182(a)(2)(A)(i). It did not address other statutes, or convictions expunged, set aside or otherwise modified. It also left open whether the question is asked when the person applies for admission, when the immigration judge decides or when the Board decides. A Fourth Circuit ruling does not bind immigration judges or the Ninth Circuit in California cases, where Bent and Ballinas-Lucero apply the test.

We think a California lawyer should still preserve the argument. It will need adapting for cancellation, because the cancellation statute, 8 U.S.C. § 1229b(b)(1)(C), asks whether a person “has not been convicted,” different words from those the Fourth Circuit construed. The Fourth Circuit also said that a statute reading “at any time has been convicted” might come out differently. And although it held that she did not have to raise the point before the Board, which was bound by the Attorney General’s endorsement of the test, we would raise it there anyway. Prove the defect under Pickering, and also argue, at the Board and in any petition for review, that a vacated conviction is no longer a conviction at all.