The Ninth Circuit has determined that an applicant for relief bears the burden of proof for proving that a conviction was vacated due to legal defect. The court found the applicant had met his burden of proof when his conviction was withdrawn under Penal Code section 1018. “The grounds for allowing withdrawal of a guilty plea under § 1018 are substantive and procedural defects in the underlying proceeding.”
"The BIA noted that Ballinas-Lucero’s Memorandum ‘asserts that the respondent felt pressured, did not understand his options, did not discuss his case with an attorney, and was not adequately advised of the immigration consequences of his plea.’” “Any reasonable adjudicator reading Ballinas-Lucero’s Memorandum in support of his motion would be required to find that the factual grounds asserted pertained overwhelmingly to substantive and procedural defects in his pleas, as specified in § 1018.”
“Despite the clarity of Ballinas-Lucero’s Memorandum, and of the criteria in § 1018, the BIA found the ‘absence of any statement by the court regarding the reasons for permitting the withdrawal of the respondent’s guilty plea’ to be dispositive. This was error. As the Attorney General stated in In re Thomas, adjudicators applying the ‘Pickering test . . . 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.’”
The full text of Ballinas-Lucero v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/17-73260.pdf