In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3611
M ANUEL E STRADA-R AMOS,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A074-103-808
A RGUED M AY 24, 2010—D ECIDED JULY 1, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
E VANS, Circuit Judge. The Department of Homeland
Security (DHS) initiated removal proceedings against
Manuel Estrada-Ramos in 2008. Estrada-Ramos moved
to terminate the proceedings, alleging that he was a
lawful permanent resident as of 1997. However, there
was a fly in the ointment: he was convicted of a criminal
2 No. 09-3611
offense in California in 1991. Although his conviction
was set aside pursuant to state law, DHS argued that it
remained a “conviction” for purposes of the Immigration
and Nationality Act (INA), rendering invalid Estrada-
Ramos’ move to permanent resident status. An immigra-
tion judge (IJ) agreed with DHS and the Board of Im-
migration Appeals (BIA) affirmed. Estrada-Ramos now
petitions for review.
Estrada-Ramos is a 39-year old native and citizen of
Mexico. Immigration and Naturalization Service (now
DHS) adjusted his status to lawful permanent resident
on June 2, 1997. However, on May 17, 1991, Estrada-
Ramos was convicted in California state court, after a
guilty plea, on a drug charge involving cocaine.1 He
was sentenced to one year in prison and five years of
probation. On May 15, 1997, his guilty plea was set
aside and his case was dismissed pursuant to California
Penal Code § 1203.4. For whatever reason, INS was
unaware that Estrada-Ramos had a conviction when
it adjusted his status.
Estrada-Ramos left the United States on an unknown
date and attempted to return through Laredo, Texas, in
October 2006. DHS granted him deferred inspection
and served him with a notice to appear in January 2008,
alleging that at the time INS adjusted his status, he was
not eligible for the change. DHS charged Estrada-
Ramos with inadmissibility under INA § 237(a)(1)(A),
1
At oral argument, we were told that the conviction was
for possession of cocaine with intent to sell.
No. 09-3611 3
8 U.S.C. § 1227(a)(1)(A), as an alien with a controlled
substance conviction at the time of entry or adjustment
of status. He denied the charge of removability, arguing
that his adjustment to permanent resident status was
valid because his criminal conviction was expunged
under California law.
The IJ, in an oral decision, found that the 1991 convic-
tion remained effective because it was dismissed for
ameliorative (i.e., rehabilitative) purposes not for any
procedural or substantial defects in the proceedings.
Consequently, the IJ deemed Estrada-Ramos ineligible
for relief under former INA § 212(c) and ineligible for
cancellation of removal under INA § 240A(a) or § 240A(b).
Estrada-Ramos appealed to the BIA, which affirmed the
IJ’s order.
On his petition for review, Estrada-Ramos argues that
the conviction is not effective for immigration purposes,
and thus, his status was properly adjusted to lawful
permanent resident. The government suggests that we
lack jurisdiction to review the removal order because
Estrada-Ramos committed a qualifying criminal offense
under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). We
lack jurisdiction to review removal orders of aliens re-
movable under § 242(a)(2)(C) unless there is a valid
constitutional claim or question of law. Zamora-Mallari v.
Mukasey, 514 F.3d 679, 693-94 (7th Cir. 2008). Whether
an offense constitutes a “conviction” under the INA is
such a question. We review this question de novo, while
giving deference to the BIA’s reasonable interpretation
of the INA. Ali v. Ashcroft, 395 F.3d 722, 727 (7th Cir.
4 No. 09-3611
2005) (internal citations omitted). Under the INA, a
“conviction” means, with respect to an alien:
a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld,
where—(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or nolo con-
tendere or has admitted sufficient facts to warrant a
finding of guilt, and (ii) the judge has ordered some
form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
If a conviction was vacated due to a procedural or
substantive defect in the underlying proceeding, it is no
longer effective for immigration purposes; however, if it
was vacated for rehabilitative purposes, it remains effec-
tive. Ali, 395 F.3d at 727; Matter of Pickering, 23 I. & N. Dec.
621, 624 (BIA 2003). Estrada-Ramos does not dispute
that he was convicted of cocaine possession with intent
to sell; nor does he claim there was any defect in the
California proceeding against him. Thus, the conviction
must have been set aside for ameliorative purposes.
Notwithstanding the conviction, Estrada-Ramos argues
that his lawful permanent resident status is valid be-
cause he did not commit fraud to obtain it. However,
the BIA has held that “lawfully admitted for permanent
residence” does not apply to aliens who “obtained their
permanent resident status by fraud, or had otherwise not
been entitled to it.” Matter of Koloamantangi, 23 I. & N. Dec.
548, 550 (BIA 2003) (emphasis added). A number of our
sister circuits have subsequently found the BIA’s inter-
No. 09-3611 5
pretation reasonable and have held that fraud and mis-
representation are not the sole bases upon which the
agency can conclude that an alien did not lawfully obtain
adjustment of status. De La Rosa v. DHS, 489 F.3d 551, 554-
55 (2d Cir. 2007); Savoury v. U.S. Attorney General, 449
F.3d 1307, 1317 (11th Cir. 2006); Arellano-Garcia v. Gonzales,
429 F.3d 1183, 1186-87 (8th Cir. 2005). We agree that to
be “lawfully admitted” the adjustment of status must be
in compliance with substantive legal requirements, not
mere procedural regularity. Savoury, 449 F.3d at 1316
(quoting Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983)).
Therefore, we agree with the BIA that Estrada-Ramos
was never “lawfully admitted” for permanent residence.
Estrada-Ramos also claims that he was deprived of his
statutory right to present evidence because he did not
have the opportunity to submit a certified case report.2
However, he does not show how the report would make
any material difference to the question of whether his
conviction counts for immigration purposes. In fact,
Estrada-Ramos’ counsel at oral argument admitted he
has not seen the document. Without knowing more
about the report, we cannot see how it affects the out-
come of this case.
For these reasons, the petition for review is D ENIED.
2
The government argues that he failed to exhaust this argu-
ment to the agency; regardless, it fails on the merits.
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