F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 20 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SONNY (KILSON) ELKINS,
Petitioner - Appellant,
v. No. 03-1184
MICHAEL COMFORT, Acting
District Director, United States
Immigration and Naturalization
Service, Denver, Colorado, in his
official capacity; JOHN ASHCROFT,
United States Attorney General, in his
official capacity; and JAMES W.
ZIGLAR, Commissioner, U.S.
Immigration and Naturalization
Service, in his official capacity,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 99-B-1113)
Marc Van Der Hout (Stacy Tolchin with him on the briefs), of Van Der Hout,
Brigagliano & Nightingale, San Francisco, California, for Petitioner - Appellant.
Papu Sandhu, Senior Litigation Counsel (Emily Anne Radford, Assistant Director,
with him on the brief), Office of Immigration Litigation, Civil Division,
Department of Justice, Washington, D.C., for Respondents - Appellees.
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
HARTZ, Circuit Judge.
An alien who has been paroled into the United States may seek an
adjustment of status under 8 U.S.C. § 1255(a) to avoid being removed from this
country. Such adjustment is available, however, only to aliens who are
“admissible” to the United States for permanent residence. Id. One ground of
inadmissibility is conviction of a controlled-substance offense under the laws of
the United States, any State, or any foreign country. 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). 1
As yet unresolved in this circuit is whether the Federal First Offender Act
(FFOA), 18 U.S.C. § 3607, overrides § 1182. Under the FFOA a first-time
offender of 21 U.S.C. § 844 (relating to possession of controlled substances) may
be placed on probation for a year or less without entry of a judgment of
1
The statute provides:
[A]ny alien convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of— . . .
(II) a violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 802 of Title
21),
is inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i)(II).
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conviction. If the offender successfully completes probation, the proceedings will
be dismissed and the disposition “shall not be considered a conviction for the
purpose of a disqualification or a disability imposed by law upon conviction of a
crime, or for any other purpose.” 18 U.S.C. § 3607(b). 2 For this appeal we will
2
In full, the statute provides:
(a) Pre-judgment probation.—If a person found guilty of an
offense described in section 404 of the Controlled Substances Act (21
U.S.C. 844)—
(1) has not, prior to the commission of such offense, been
convicted of violating a Federal or State law relating to controlled
substances; and
(2) has not previously been the subject of a disposition under
this subsection;
the court may, with the consent of such person, place him on probation for
a term of not more than one year without entering a judgment of conviction.
At any time before the expiration of the term of probation, if the person has
not violated a condition of his probation, the court may, without entering a
judgment of conviction, dismiss the proceedings against the person and
discharge him from probation. At the expiration of the term of probation,
if the person has not violated a condition of his probation, the court shall,
without entering a judgment of conviction, dismiss the proceedings against
the person and discharge him from probation. If the person violates a
condition of his probation, the court shall proceed in accordance with the
provisions of section 3565.
(b) Record of disposition.—A nonpublic record of a disposition
under subsection (a), or a conviction that is the subject of an expungement
order under subsection (c), shall be retained by the Department of Justice
solely for the purpose of use by the courts in determining in any subsequent
proceeding whether a person qualifies for the disposition provided in
subsection (a) or the expungement provided in subsection (c). A
disposition under subsection (a), or a conviction that is the subject of an
expungement order under subsection (c), shall not be considered a
(continued...)
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assume that a disposition under the FFOA does not constitute a conviction for
purposes of § 1182. Nevertheless, we hold that Petitioner Kilson Elkins cannot
benefit from this assumption. Her marijuana conviction was under Korean law,
and her term of probation exceeded what is permissible under the FFOA. We
reject Petitioner’s contention that Fifth Amendment equal-protection principles
require that she receive the benefits of an FFOA disposition.
I. BACKGROUND
2
(...continued)
conviction for the purpose of a disqualification or a disability imposed by
law upon conviction of a crime, or for any other purpose.
(c) Expungement of record of disposition.—If the case against a
person found guilty of an offense under section 404 of the Controlled
Substances Act (21 U.S.C. 844) is the subject of a disposition under
subsection (a), and the person was less than twenty-one years old at the
time of the offense, the court shall enter an expungement order upon the
application of such person. The expungement order shall direct that there
be expunged from all official records, except the nonpublic records referred
to in subsection (b), all references to his arrest for the offense, the
institution of criminal proceedings against him, and the results thereof.
The effect of the order shall be to restore such person, in the contemplation
of the law, to the status he occupied before such arrest or institution of
criminal proceedings. A person concerning whom such an order has been
entered shall not be held thereafter under any provision of law to be guilty
of perjury, false swearing, or making a false statement by reason of his
failure to recite or acknowledge such arrests or institution of criminal
proceedings, or the results thereof, in response to an inquiry made of him
for any purpose.
18 U.S.C. § 3607.
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On October 23, 1975, when Petitioner was 20 years old, she was convicted
under a Korean narcotics law for possession of marijuana. Her eight-month
sentence of imprisonment was suspended for two years. After the two-year
suspension her sentence “lapsed” under Korean law. Petitioner was paroled into
the United States on April 17, 1987, while married to Carlos Flores, a
United States citizen. In 1995, in short order, the Immigration and Naturalization
Service (INS) 3 commenced exclusion proceedings against Petitioner, she and
Flores were divorced, she married Jay Elkins, also a United States citizen, and she
petitioned for adjustment of status to lawful permanent resident. In 1997 an
immigration judge ordered Petitioner excluded from the United States and
deported to South Korea. Her petition for adjustment of status was denied by the
INS in 1999 because of her conviction.
Petitioner then sought a writ of habeas corpus from the United States
District Court for the District of Colorado, contending that she was eligible for
adjustment of status despite her Korean conviction. We agree that this was the
proper procedure to raise this contention. See I.N.S. v. St. Cyr, 533 U.S. 289,
3
On March 1, 2003 the INS ceased to exist, and its responsibilities were
divided among three distinct agencies formed within the new Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 441, 451, 116 Stat. 2135 (November 25, 2002). Because the actions Petitioner
challenges in this appeal were taken prior to this reorganization, however, in this
opinion we will refer to the relevant government agency as the INS.
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297, 299-300 308-14 (2001) (challenge to INS judgment holding alien ineligible
for waiver of deportation was properly filed as habeas claim in district court when
petition to court of appeals was forbidden by statute). Cf. Duran-Hernandez v.
Ashcroft, 348 F.3d 1158, 1162, 1162 n. 3 (10th Cir. 2003) (petition challenging
INS order of removal, including reinstatement of order of removal, properly filed
in court of appeals when statute—8 U.S.C. § 1252(b)(2)—so directs).
II. DISCUSSION
In district court Petitioner argued that Fifth Amendment equal-protection
principles require that the benefits of an FFOA disposition apply to her lapsed
Korean conviction. The government countered that the length of Petitioner’s
probation, and the difficulty of obtaining information about foreign convictions
generally, provide a rational basis for distinguishing Petitioner’s conviction from
an FFOA disposition.
The district court avoided the equal-protection issue by deciding that
Petitioner was ineligible for adjustment of status on two alternative grounds:
first, because the 1997 exclusion order against Petitioner made her ineligible for
adjustment of status, and second, because the marriage on which her application
for adjustment of status was based took place after exclusion proceedings against
her had begun. Memorandum Opinion and Order (Feb. 14, 2003) at 6-8.
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The government does not defend the first of these grounds on appeal.
Although it does argue that the second ground was proper, it also argues, as it did
in district court, that Petitioner’s prior conviction makes her ineligible for
adjustment of status. Petitioner responds that we should not decide the prior-
conviction issue, but should remand it to the district court for consideration there
in the first instance.
We have discretion to affirm on any ground adequately supported by the
record. Stillman v. Teachers Ins. & Annuity Ass’n Coll. Ret. Equities Fund, 343
F.3d 1311, 1321 (10th Cir. 2003). In exercising that discretion we consider
whether the ground was fully briefed and argued here and below, see Bennett v.
Spear, 520 U.S. 154, 166-67 (1997); whether the parties have had a “fair
opportunity to develop the [factual] record,” Seibert v. Okla. ex rel. Univ. of
Okla. Health Sci. Ctr., 867 F.2d 591, 597 (10th Cir. 1989) abrogated on other
grounds by Fed. Lands Legal Consort. ex rel . Robart Estate v. United States, 195
F.3d 1190, 1195-96 (10th Cir. 1999); and whether, in light of factual findings to
which we defer or uncontested facts, our decision would involve only questions of
law, see Stillman, 343 F.3d at 1321-22. Each of these considerations supports
reaching the prior-conviction issue in this case: the issue was fully briefed and
argued in district court, the issue was raised on appeal, the parties had ample
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opportunity to present relevant evidence, and there are no material factual
disputes. We therefore address the prior-conviction issue.
Petitioner argues that the FFOA prevents the government from treating
dispositions under it as “convictions” for the purpose of the immigration laws. If
so, Petitioner argues, it would violate the Fifth Amendment for the government to
treat differently convictions for the same conduct obtained and similarly
expunged under foreign law. She argues that her criminal conduct, the two-year
suspension of sentence, and the subsequent lapse of her conviction, are not
constitutionally distinguishable from the conduct, probation, and dismissal treated
as a nonconviction under the FFOA.
The government contends that the definition of conviction in the
immigration laws constitutes a congressional command that the treatment of a
conviction not be affected, for immigration purposes, by subsequent
expungement. See 8 U.S.C. § 1101(a)(48)(A) (defining conviction). 4 But we
4
Section 1101(a)48)(A) states:
The term "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 contendere or
has admitted sufficient facts to warrant a finding of
guilt, and
(continued...)
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need not decide whether this statutory definition of conviction is overridden by
the FFOA. Even if the FFOA applies in the immigration context, the Fifth
Amendment does not require its extension to Petitioner’s foreign conviction.
Petitioner does not dispute that the Fifth Amendment is satisfied if there is
a rational basis for the law to treat her lapsed conviction differently than it does
an FFOA disposition. See Soskin v. Reinertson, 353 F.3d 1242, 1255-56 (10th
Cir. 2004) (rational-basis review applied to equal-protection challenge to
treatment of one class of aliens differently than other aliens). The government
seizes on two distinctions between Petitioner and persons eligible under the
FFOA. First, Petitioner’s conviction and the expungement of that conviction
were under Korean law, whereas the FFOA applies only to federal convictions.
Second, Petitioner was subject to a two-year suspension of sentence, whereas
dispositions under the FFOA are limited to “probation for a term of not more than
one year.” 18 U.S.C. § 3607(a). In our view, either ground provides a rational
basis for denying Petitioner the benefits of the FFOA.
The government’s greater familiarity with and control over federal
prosecution, conviction, and sentencing justifies distinguishing FFOA
4
(...continued)
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be imposed.
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dispositions, which are administered by federal prosecutors and federal judges
under federal law, from otherwise similar foreign dispositions. The government
is entitled to have greater confidence about the meaning of an FFOA disposition
than about the meaning of lenient foreign dispositions. Indeed, the prevailing
view in other circuits is that there is a rational basis for distinguishing even state-
court dispositions from those under the FFOA. As Judge Alito wrote for the
Third Circuit:
Familiar with the operation of the federal criminal justice system,
Congress could have thought that aliens whose federal charges are
dismissed under the FFOA are unlikely to present a substantial threat
of committing subsequent serious crimes. By contrast, Congress may
have been unfamiliar with the operation of state schemes that
resemble the FFOA.
Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003); accord Madriz-Alvarado v.
Ashcroft, 383 F.3d 321, 332-33 (5th Cir. 2004); Resendiz-Alcaraz v. United States
Att’y Gen., 383 F.3d 1262, 1272 (11th Cir. 2004). We recognize that the Ninth
Circuit has a contrary view. See, e.g., Lujan-Armendariz v. INS, 222 F.3d 728,
741-43 (9th Cir. 2000). But we note that even it may have rejected Petitioner’s
claim; in treating an expunged United Kingdom conviction as if it had been
handed down under the FFOA, the court wrote that inquiring into the facts
surrounding the petitioner’s conviction “presents no greater obstacles to obtaining
proper evidence than cases involving state expungements.” Dillingham v. INS,
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267 F.3d 996, 1008 n. 14 (9th Cir. 2001). The court may have found less
transparent the Korean proceedings involved here.
As for the second distinction, the government may rationally draw
inferences about the convict’s criminality from the duration of the probation
imposed. Longer periods of probation are correlated with worse conduct. See
Madriz-Alvarado, 383 F.3d at 333; Vasquez-Velezmoro v. INS, 281 F.3d 693 at
697-98; Fernandez-Bernal v. Att’y Gen. of the United States, 257 F.3d 1304,
1316-17 (11th Cir. 2001).
Because there is a rational basis for distinguishing Petitioner’s lapsed
Korean conviction from a disposition under the FFOA, Petitioner was not denied
equal protection of the laws. We AFFIRM the judgment below.
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