Further, even if the state court judge's decision to modify Sandoval's sentence was motivated by the consequences of the federal immigration law, that fact would not render the modification ineffective for immigration purposes. See Matter of Kaneda, 16 I. N. Dec. 677, 1979 WL 44426 (BIA 1979); Matter of O'Sullivan, 10 I. N. Dec. 320, Interim Decision 1294, 1963 WL 12324 (BIA 1963). II. Conclusion

See discussion infra pp. 17-18. As the BIA's reading of 8 U.S.C. § 1101(a)(48)(A) is not unreasonable, we must defer to it, Guerrero-Perez, 242 F.3d at 730; Marquez, 105 F.3d at 378, as we have done elsewhere, see, e.g., Sandoval, 240 F.3d at 584 (relying on BIA rulings Matter of Kaneda, 16 I. N. Dec. 677, 1979 WL 44426 (BIA 1979) and Matter of O'Sullivan, 10 I. N. Dec. 320, Interim Decision, 1963 WL 12324 (BIA 1963) to hold that an alien whose conviction had been modified because of ineffective assistance of counsel at the plea stage did not remain convicted for immigration purposes). The BIA's Pickering decision is fatal to Ali's request for relief from removal.

In re Deris, Int.Dec. 3102 (BIA 1989); In re Golshan, 18 I N Dec. 92 (BIA 1981); In re Kaneda, 16 I N Dec. 677, 678 (BIA 1980) (citing In re Werk, Int.Dec. 2589 (BIA 1977)). The FFOA provides in part:

However, we agree with the determination of the BIA, the Seventh Circuit and the Tenth Circuit that the government bears the burden of proving that a vacated conviction remains valid for immigration purposes. See Matter of Kaneda, 16 I. N. Dec. 677, 680, 1979 WL 44426 (1979); Sandoval 240 F.3d at 581-82; Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005). Even were the burden with the Petitioner, he has met that burden.

See id.; United States v. Campbell, 778 F.2d 764, 768 (11th Cir. 1985) ("[C]ounsel's failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance."). Ali also relies on In re Kaneda, 16 I. N. Dec. 677, 1979 WL 44426 (BIA 1979) (INS failed to prove that dismissal of respondent's marijuana charge under state first offender statute did not remove basis for deportability) and In re O'Sullivan, 10 I. N. Dec. 320, 1963 WL 12324 (BIA 1963) (upholding special inquiry officer's decision to terminate deportation proceedings where respondent's motion for new trial was granted and case was nolle prossed, no rationale was given for this action in the court's order, and nothing indicated that state court exceeded its authority under state law). These cases, however, preceded the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, which defined "conviction" for purposes of the INA. Prior to IIRIRA, the BIA had held (with some exceptions) that vacated or expunged convictions could not be the basis for an alien's removal.