Labor & Employment Law Daily Wrap Up, IMMIGRATION—4th Cir.: Mexican native with vacated marijuana conviction prevails against removal order post-Chevron, (Aug 25, 2026)

By Jason Albright, J.D.

8 U.S.C. § 1182(a)(2)(A)(i) makes inadmissible “any alien convicted of” the relevant offense.

Applying Loper Bright Enterprises v. Raimondo to a final order of removal issued against a woman from Mexico with a vacated North Carolina marijuana conviction, the Fourth Circuit found that the petitioner is not now an “alien convicted of” a controlled-substance offense, and that her removal on that basis was in error. Rejecting the Board of Immigration Appeals’ longstanding “reason-for-vacatur” statutory interpretation, whereby convictions vacated for reasons other than substantively or procedurally defective proceedings still qualify as convictions for removal purposes under 8 U.S.C. § 1182(a)(2)(A)(i), the federal appeals court found that the petitioner was no longer “convicted of” the offense, under the statute’s plain language, after a North Carolina state court vacated the marijuana conviction and dismissed the underlying charge. The appeals court rejected her additional argument, however, that the agency’s regulations governing the timing of voluntary departure are arbitrary and capricious ( Piedra v. Blanche , No. 25-1258 (4th Cir. Aug. 24, 2026)).

Native of Mexico, arrived as child. The petitioner is a native and citizen of Mexico, seeking review of a final order of removal issued by the Board of Immigration Appeals (BIA). She came to the U.S. as a child and has lived here since.

Three North Carolina crimes. In 2006, shortly after becoming a lawful permanent resident, she was convicted of three crimes in North Carolina state court. In one proceeding, she was convicted of two counts of common-law forgery. In another, she pleaded guilty to possession of marijuana.

Notice to appear after Mexico trip. After completing noncustodial sentences for those offenses, she remained in the U.S for several years. Customs officers, however, later issued her a notice to appear when she returned to the U.S. after a 2013 visit to Mexico.

Removal proceedings. In removal proceedings, she conceded inadmissibility as an “alien convicted of” a controlled-substance offense and a crime involving moral turpitude. She sought waiver, however, under Section 1182(h), which gives the Attorney General discretion to waive application of certain controlled-substance and moral-turpitude grounds of inadmissibility.

IJ declined waiver. An immigration judge (IJ) found that she did not qualify for a waiver of either ground of inadmissibility. First, to be considered for a waiver of a controlled-substance offense, an applicant must show that the relevant offense involved 30 grams or less of marijuana. The petitioner failed to do so, the IJ concluded, because the statutory upper range of her conviction exceeded 30 grams, and the evidence in the case implicated more than 10 pounds of marijuana. Second, to receive a waiver of either a controlled-substance offense or a crime involving moral turpitude, she needed to show that failure to admit her to the U.S. would cause “extreme hardship” to one of her resident family members, and the IJ found no such extreme hardship.

Finally, even if she had met the preconditions, the IJ found that she did not merit a waiver as a matter of discretion. The IJ thus denied her waiver request but granted her request for voluntary departure.

Appeal to BIA. She appealed to BIA, arguing that the IJ erred across the board.

Vacatur of marijuana conviction in North Carolina. While BIA considered her appeal, however, she also asked a North Carolina state court to vacate her marijuana conviction. The state court obliged, and the state dismissed the underlying charge. Given her now-vacated conviction, she then asked BIA to remand the case to the IJ for further consideration.

Dismissal of BIA appeal. BIA dismissed her appeal and denied her motion to remand. Though it did not adopt the IJ’s opinion, in its independent analysis, BIA focused on the vacated marijuana conviction. Applying its 2003 framework for analyzing vacated convictions enunciated in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), the Board concluded that the petitioner’s marijuana conviction was still valid for immigration purposes.

BIA then affirmed the IJ’s conclusion that she was statutorily barred from receiving a waiver because she could not establish that her conviction involved 30 grams or less of marijuana. Based on her failure to qualify for a waiver, BIA expressly declined to address her other arguments.

Appeal to Fourth Circuit. She timely petitioned the Fourth Circuit for review of her final order of removal. First, she argued that BIA erred in denying her motion to remand based on its conclusion that her vacated marijuana conviction still counted against her. This was true, she argued, under BIA’s Pickering framework, which still considers convictions valid for immigration purposes unless they are vacated for substantive or procedural defects in the underlying proceedings. She alternatively challenged Pickering head-on, arguing that no vacated conviction should still count for immigration purposes under the Immigration and Nationality Act. See § 1182(a)(2)(A)(i). Second, she argued that the regulations governing the timing of voluntary departure are arbitrary and capricious.

Not inadmissible. In an opinion by Judge Jay Richardson, who was appointed by President Trump in 2018, a unanimous three-member panel of the Fourth Circuit granted her petition in part, agreeing that her vacated conviction for possession of marijuana does not make her an “alien convicted of” a controlled-substance violation under 8 U.S.C. § 1182(a)(2)(A)(i). “The Board’s reason-for-vacatur framework,” the appeals court concluded, “cannot govern because it conflicts with the statute’s best reading.”

Post-Chevron. For decades, the appeals court noted, courts were required to defer to a federal agency’s reasonable interpretation of an ambiguous statute. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). However, in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412-13 (2024), the U.S. Supreme Court dismantled the Chevron regime. Now, rather than defer to agency interpretations, courts must “exercise their independent judgment” and apply the “best reading” of a statute.

8 U.S.C. § 1182(a)(2)(A)(i). Starting with the text of the statute, the Fourth Circuit observed that Section 1182(a)(2)(A)(i) makes inadmissible “any alien convicted of” a controlled-substance offense, and Section 1101(a)(48)(A), in turn, defines “conviction” to include “a formal judgment of guilt of the alien entered by a court.” Here, the court noted, the petitioner’s original judgment satisfied that definition, but it still remained to ask whether she is still an “alien convicted of” the offense.

Past participle. In the context of the statute, the appeals court found, the term “convicted” is acting as a past participle. Looking to how other past participles—such as “married,” “licensed,” or “employed”—are commonly understood, the court noted that, in each example, text and context “suggest that the relevant characteristic must currently apply.”

Statutory context. Statutory context further supported this reading, according to the Fourth Circuit. Elsewhere in the Immigration and Nationality Act, the appeals court noted, Congress used language that lends itself more naturally to a historical-fact reading of such a term. Congress, for instance, defined a “person of good moral character” for immigration purposes to exclude “one who at any time has been convicted of an aggravated felony.” See 8 U.S.C. § 1101(f)(8) (emphasis added). And had the statute here included the phrase “at any time,” the analysis might turn out differently. It does not.

Background legal principles. Finally, the Fourth Circuit noted that background legal principles support its legal-status reading as well. In Hewitt v. United States, 606 U.S. 419, 431 (2025), the Supreme Court identified one such background presumption: “that vacated court orders are void ab initio and thus lack any prospective legal effect.” Under this principle, the Fourth Circuit said, a person whose only conviction has been vacated is not a “person convicted of” anything.

Agency error. The appeals court accordingly concluded that, when asking whether a person is an “alien convicted of” a controlled-substance offense under Section 1182(a)(2)(A)(i), a court may not consider vacated convictions, and thus, BIA erred when it concluded otherwise.

Voluntary-departure regulations. The Fourth Circuit declined, however, to find that regulations dealing with the timing of voluntary departure after the filing of a petition for review are arbitrary and capricious. The petitioner argued that the regulatory scheme is arbitrary and capricious because it seems to penalize those who file their petitions for review early. She did not challenge the Attorney General’s authority to promulgate the regulations, and she did not challenge the automatic termination of voluntary departure per se. She challenged only the fact that a 30-day grace period benefits those who wait longer to file their petitions for review.

Unpersuaded that this regulatory scheme is arbitrary and capricious, the court noted that “Voluntary departure represents a quid pro quo between the alien and the government” in which “[t]he government gets a cheaper, faster departure, and the alien avoids some of the consequences of removal.” Accordingly, “[i]t is reasonable for the Attorney General to terminate the grant of voluntary departure when an alien chooses to continue trying to remain in the country.”

Here, concluded the court “That the Attorney General chose to extend a grace period does not make that decision less reasonable. Instead, it puts the timing of departure in the alien’s hands: If an alien wants to maximize the length of her stay, she can wait longer to petition for review.”

The case is No. 25-1258.

Judge: Richardson, J.

Attorneys: Allison Lukanich (Law Offices of Allison Lukanich) for Lizbeyde Yanez Piedra. Jonathan Stephen Needle, U.S. Department of Justice, for Todd Blanche.

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