Fourth Circuit Rejects the “Reason-for-Vacatur” Test: A Vacated Conviction Cannot Support Inadmissibility Under 8 U.S.C. § 1182(a)(2)(A)(i)

I. Introduction

In Lizbeyde Piedra v. Todd Blanche (4th Cir. Aug. 24, 2026), the Fourth Circuit addressed a long-contested question in immigration law: whether a vacated state conviction still renders a noncitizen inadmissible under the Immigration and Nationality Act (“INA”), and whether the answer depends on why the state court vacated it.

The petitioner, Lizbeyde Yanez Piedra, a lawful permanent resident from Mexico, had North Carolina convictions including a marijuana possession offense. During her appeal to the Board of Immigration Appeals (“BIA”), she obtained a state-court vacatur of the marijuana conviction and dismissal of the underlying charge. The BIA nonetheless treated the conviction as still operative for immigration purposes under its “reason-for-vacatur” framework from Matter of Pickering, concluding she remained inadmissible as an “alien convicted of” a controlled-substance offense under 8 U.S.C. § 1182(a)(2)(A)(i), thereby defeating her pursuit of a waiver.

Two principal issues reached the court: (1) whether a vacated conviction can support inadmissibility under § 1182(a)(2)(A)(i), and (2) whether regulations terminating voluntary departure upon filing a petition for review are arbitrary and capricious.

II. Summary of the Opinion

  • Vacated conviction / inadmissibility: The court held that once the marijuana conviction was vacated and the charge dismissed, the petitioner was no longer an “alien convicted of” that offense for purposes of 8 U.S.C. § 1182(a)(2)(A)(i). The BIA’s Matter of Pickering “reason-for-vacatur” distinction conflicts with the statute’s best reading and cannot govern this inadmissibility determination.
  • Exhaustion: The petitioner was permitted to raise the statutory challenge to Pickering for the first time in court because the agency lacked authority “as of right” to grant relief in light of the Attorney General’s binding endorsement of Pickering in Matter of Thomas & Thompson.
  • Chevron’s demise and interpretive method: After Loper Bright Enterprises v. Raimondo, the court independently applied the “best reading” of the statute rather than deferring to the BIA’s interpretation.
  • Voluntary departure regulations: The court rejected the challenge to 8 C.F.R. § 1240.26(i), holding the timing scheme is not arbitrary and capricious.

III. Analysis

A. Precedents Cited

1. The court’s renewed role in statutory interpretation

  • Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): Cited for the judiciary’s duty “to say what the law is,” framing the opinion’s interpretive posture—courts, not agencies, ultimately determine statutory meaning.
  • Chelvron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984): Identified as the former deference regime that had constrained independent judicial interpretation where statutes were deemed ambiguous.
  • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): The opinion’s fulcrum. The Fourth Circuit treated Loper Bright as requiring courts to exercise independent judgment and apply the statute’s “best reading,” rather than deferring to the BIA’s approach.

2. Jurisdiction, exhaustion, and scope of review in immigration petitions

  • Ibarra v. Bondi, 136 F.4th 63 (4th Cir. 2025): Cited for jurisdiction to review “legal questions” notwithstanding the criminal-alien review bar in 8 U.S.C. § 1252(a)(2)(C), via § 1252(a)(2)(D).
  • Herrera-Alcala v. Garland, 39 F.4th 233 (4th Cir. 2022): Used to limit review to the BIA’s decision when the BIA does not adopt the immigration judge’s reasoning.
  • Lopez-Benitez v. Garland, 91 F.4th 763 (4th Cir. 2024): Cited to clarify that exhaustion under 8 U.S.C. § 1252(d)(1) is non-jurisdictional but mandatory when invoked by the government.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Central to the exhaustion holding—only remedies available “as of right” must be exhausted; discretionary Attorney General referral is not such a remedy.
  • Shaw v. Sessions, 898 F.3d 448 (4th Cir. 2018): Noted for the proposition (as applied by the Fourth Circuit) that failure to raise a legal theory before the BIA can constitute abandonment—distinguished here because no “as of right” relief was available.

3. Prior Fourth Circuit engagement with Pickering

  • Phan v. Holder, 667 F.3d 448 (4th Cir. 2012): The government argued Phan compelled Pickering’s application. The court distinguished it: Phan involved a different statutory phrase (“at any time has been convicted of” in 8 U.S.C. § 1101(f)(8)), different facts (a conviction “set aside,” not vacated), and a different agency context.
  • Parikh v. Gonzales, 155 F. App’x 635 (4th Cir. 2005): An unpublished decision applying Pickering, deemed nonbinding.
  • Koontz v. SN Servicing Corp., 133 F.4th 320 (4th Cir. 2025): Cited for the rule that unpublished opinions are not binding precedent in the Fourth Circuit.

4. The “vacatur principle” and status-based statutory triggers

  • Hewitt v. United States, 606 U.S. 419 (2025): Pivotal support for the “background presumption” that vacated orders are void ab initio and lack prospective legal effect. The opinion relied on Hewitt’s explicit statement: “A criminal defendant whose judgment of conviction has been vacated … is to be treated going forward as though he were never convicted.”
  • Bond v. United States, 572 U.S. 844 (2014): Quoted (via Hewitt) for the interpretive principle that Congress legislates against the backdrop of established presumptions.
  • Lewis v. United States, 445 U.S. 55 (1980): Used to reinforce a “common-sense notion” that disabilities dependent on “status as a convicted felon” cease when the conviction is vacated—supporting an implied statutory exception for vacated convictions even when text is broad.

5. The BIA’s framework and the circuit landscape

  • Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003): The BIA’s rule: a vacated conviction still counts unless vacated due to a “defect in the underlying criminal proceedings.” The Fourth Circuit held this framework conflicts with § 1182(a)(2)(A)(i) as applied to vacated convictions.
  • Matter of Thomas & Thompson, 27 I. & N. Dec. 674 (A.G. 2019): Cited to show the Attorney General endorsed Pickering and extended its defect-versus-rehabilitation distinction to sentence alterations, making Pickering binding on the BIA and relevant to exhaustion.
  • Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988): Discussed as part of the pre-1996 history leading to Congress’s 1996 statutory definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A).
  • Sister-circuit decisions (surveyed as largely adopting Pickering, often under Chevron):
    • Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007)
    • Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005)
    • Ali v. Ashcroft, 395 F.3d 722 (7th Cir. 2005)
    • Andrade-Zamora v. Lynch, 814 F.3d 945 (8th Cir. 2016)
    • Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006)
    • Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006)
    • Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005)
  • Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002): Noted as adopting an even more stringent view—treating vacated convictions as still counting—ultimately rejected here.
  • Gaona-Romero v. Gonzales, 497 F.3d 694 (5th Cir. 2007) (per curiam): Cited to note the Fifth Circuit later accepted the government’s abandonment of Renteria-Gonzalez’s approach.

6. Voluntary departure and arbitrary-and-capricious review

  • Dada v. Mukasey, 554 U.S. 1 (2008): Described voluntary departure as a discretionary “grace” mechanism allowing favored noncitizens to depart willingly.
  • Judulang v. Holder, 565 U.S. 42 (2011): Cited for the applicability of arbitrary-and-capricious review concepts in immigration adjudication contexts.
  • Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc): Quoted for the characterization of voluntary departure as a “quid pro quo” and used to validate the reasonableness of terminating voluntary departure when a petition for review is filed.

B. Legal Reasoning

1. The statutory question: “any alien convicted of”

The court framed the decisive interpretive move as distinguishing between two possible readings of § 1182(a)(2)(A)(i)’s phrase “any alien convicted of”:

  • Legal-status reading: “convicted of” describes a present condition—someone who currently “stands convicted.”
  • Historical-fact reading: “convicted of” means anyone who has ever been convicted at any time, even if the conviction no longer exists.

The Fourth Circuit adopted the legal-status reading, emphasizing ordinary language usage (one would not describe a person with only a vacated conviction as presently “convicted of” that crime), and reinforcing the point through statutory comparison: Congress elsewhere used unmistakably historical language—“at any time has been convicted”—as in 8 U.S.C. § 1101(f)(8). The absence of “at any time” in § 1182(a)(2)(A)(i) supported a status-based trigger.

2. The role of the INA’s definition of “conviction” (8 U.S.C. § 1101(a)(48)(A))

The government’s core textual pivot was the INA’s definition of “conviction,” arguing it adopts a federalized meaning that can encompass some vacated convictions. The court rejected this because § 1101(a)(48)(A) says nothing about vacatur and is principally concerned with ensuring certain withheld-adjudication dispositions count as convictions. In the court’s view, Congress “supplemented” but did not “uproot” the common understanding of conviction as a formal judgment of guilt.

3. Background principles: vacatur voids prospective legal effect

The court anchored the interpretive result in the background “vacatur principle” emphasized in Hewitt v. United States: vacated judgments are treated going forward as though they never existed. This presumption, combined with the status-based reading of “convicted of,” drove the conclusion that vacated convictions cannot be used to establish inadmissibility under § 1182(a)(2)(A)(i).

4. Why the court rejected Matter of Pickering

The Fourth Circuit acknowledged Pickering’s policy rationale—preventing “gamesmanship” through vacaturs aimed at rehabilitation or immigration hardship. But the court deemed Pickering’s central device—inquiring into the state court’s reason for vacatur—an extra-textual policy overlay. Section 1182(a)(2)(A)(i) asks whether the person is “convicted of” the offense; it does not authorize differentiating between “substantive/procedural” vacaturs and “rehabilitative/immigration” vacaturs.

The opinion also addressed alternative approaches:

  • It declined to follow circuits that “analogized from deferred adjudications to vacated convictions,” noting the statutory text did not support importing a motive-based inquiry.
  • It rejected Renteria-Gonzalez v. INS’s all-vacaturs-still-count approach as inconsistent with both the statutory core definition and the background vacatur principle.

5. Exhaustion: why the petitioner could raise the statutory challenge in court

Although the petitioner did not present her direct statutory attack on Pickering to the BIA, the court held exhaustion was not required because the relevant “remedy” was not available “as of right.” With Matter of Thomas & Thompson binding the BIA, only discretionary referral to the Attorney General could change the controlling rule, and Santos-Zacaria v. Garland forecloses treating such discretionary avenues as mandatory exhaustion targets under § 1252(d)(1).

6. Voluntary departure: no arbitrary-and-capricious defect

The court upheld 8 C.F.R. § 1240.26(i), which terminates voluntary departure upon filing a petition for review but provides a 30-day grace period. Although early filers may receive fewer total days than late filers, the court reasoned that voluntary departure is discretionary and structured as an exchange: if a noncitizen chooses to continue litigating to remain, the government may reasonably terminate the benefit. The grace period was treated as an additional accommodation, not a source of irrationality.

C. Impact

1. Immediate doctrinal shift in the Fourth Circuit for § 1182(a)(2)(A)(i)

The decision establishes a clear rule in the Fourth Circuit: a vacated conviction cannot support inadmissibility under § 1182(a)(2)(A)(i), and the reason for vacatur is irrelevant to that statutory inquiry. This sharply departs from the BIA’s Pickering framework and from the approach followed in many circuits.

2. Litigation and adjudication consequences

  • Agency adjudication: Immigration courts and the BIA (when applying Fourth Circuit law) must treat vacated convictions as non-convictions for § 1182(a)(2)(A)(i), at least where the only basis is the “convicted of” clause addressed by the court.
  • Post-conviction relief strategy: The decision increases the immigration significance of obtaining state-court vacatur and charge dismissal, because the immigration effect no longer turns on proving a procedural/substantive defect to satisfy Pickering.
  • Circuit tension and potential Supreme Court review: Because many circuits have adopted Pickering (often under Chevron), the Fourth Circuit’s rejection of Pickering as inconsistent with § 1182(a)(2)(A)(i) deepens inter-circuit divergence—especially in a post-Loper Bright environment where courts may revisit earlier deference-based holdings.

3. Carefully preserved limits

The opinion expressly left open multiple questions, including: the effect of the “admits” clauses in § 1182(a)(2)(A)(i), how vacatur operates under other INA provisions (such as 8 U.S.C. § 1101(f)(8)), and how to treat expungements, set-asides, and other modifications. It also did not resolve the relevant timing question (admission application vs. immigration judge decision vs. BIA decision).

IV. Complex Concepts Simplified

  • “Inadmissible” (INA): A legal bar to being admitted (or, in some contexts, to remaining after seeking admission) because the person fits a statutory category—here, controlled-substance and moral-turpitude grounds.
  • “Alien convicted of” (8 U.S.C. § 1182(a)(2)(A)(i)): A trigger for inadmissibility. This case holds the phrase is status-based: if the conviction is vacated, the person is not presently “convicted of” that offense.
  • Vacatur: A court order nullifying a conviction. Under the “vacatur principle” cited in Hewitt v. United States, vacated judgments generally have no prospective legal effect.
  • Matter of Pickering’s “reason-for-vacatur” rule: The BIA’s prior test that treated some vacated convictions as still counting depending on why they were vacated (defect vs. rehabilitation/immigration hardship). The Fourth Circuit rejected this test for § 1182(a)(2)(A)(i).
  • Chevron deference vs. “best reading”: Under Chevron, courts often deferred to reasonable agency interpretations of ambiguous statutes. Under Loper Bright Enterprises v. Raimondo, courts must independently determine the statute’s best meaning.
  • Exhaustion “as of right” (8 U.S.C. § 1252(d)(1)): A petitioner must pursue administrative remedies that are guaranteed and available; discretionary avenues (like possible Attorney General referral) need not be exhausted.
  • Voluntary departure: Permission to leave the U.S. voluntarily (avoiding some consequences of a removal order). Regulations may terminate this permission if the person petitions for judicial review, reflecting the idea that voluntary departure is a discretionary tradeoff.

V. Conclusion

Lizbeyde Piedra v. Todd Blanche is a significant post-Loper Bright immigration decision in which the Fourth Circuit re-centered statutory text and background legal principles over agency policy frameworks. The court held that, for inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i), a person with a vacated conviction is not an “alien convicted of” that offense—regardless of the state court’s motive for vacatur—thereby rejecting the BIA’s longstanding Matter of Pickering distinction in this context. At the same time, the court upheld the voluntary-departure timing regulations as a reasonable exercise of regulatory discretion.