F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 18, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
K IN G SLEY LEE A SA G WA R A,
Petitioner,
v. No. 05-9605
(No. A90 443 602)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
OR D ER AND JUDGM ENT *
Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.
Petitioner Kingsley Lee Asagwara challenges the Board of Immigration
Appeals’ (BIA’s) order dismissing his appeal from an Immigration Judge’s (IJ’s)
removal order. W e deny the petition in part and dismiss it in part.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
B ACKGROUND
Asagwara is a native and citizen of Nigeria. He entered this country in
1975 and acquired lawful permanent resident status. In M arch 1995, Asagwara
entered an Alford plea 1 in Oklahoma state court to multiple counts of first-degree
rape and lewdness with a child under the age of sixteen. As part of his plea,
Asagwara acknowledged that there was “evidence showing that [he] had sex with
[his two step-daughters, who were] both under 14 . . . and that [he] also molested”
them. Admin. R. at 379. The court found Asagwara guilty and purportedly
imposed a “one year deferred sentence with no time to serve.” Id. at 14
(emphasis omitted). 2 But Asagwara was required to register as a sex offender.
See Okla. Stat. Ann. tit. 57, § 582 (W est Supp. 1994-95).
The former Immigration and Naturalization Service commenced removal
proceedings against Asagwara in 2002, alleging that he was removable as an alien
convicted of an aggravated felony. Asagwara applied for a waiver of removal
under § 212(c) of the Immigration and Nationality Act (INA) and appeared with
1
See N orth Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual
accused of [a] crime may voluntarily, knowingly, and understandingly consent to
the imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.”).
2
W e are somewhat reluctant to accept Asagwara’s representation that his
sentence was “deferred,” given that sentence deferrals were available for deferred
judgments, which could not be entered for pleas to sex offenses. See Okla. Stat.
Ann. tit. 22, § 991c(G) (W est Supp. 1994-95). In any event, according to
Asagwara’s criminal defense attorney, Asagwara served no time because the
state’s case “basically fell apart.” Admin. R. at 136.
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counsel before an IJ, offering evidence of his character, family responsibilities,
and community ties. The IJ reviewed the evidence and denied A sagwara’s
application, concluding:
In light of the extreme severity of [Asagwara’s] offenses, and in light
of the harm or danger which the Court believes he poses to the
United States of America and the citizens thereof, the Court believes
that . . . [Asagwara’s] application for a waiver under Section 212(c)
must be denied.
Admin. R. at 109.
Asagwara appealed to the BIA, arguing that (1) at the time of his plea, he
was not removable because “his deferred sentence was not a conviction,” and
(2) the IJ abused his discretion in denying a waiver of removal. Id. at 14. The
BIA dismissed the appeal. First, it concluded that the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA) retroactively altered the
definition of conviction, and that, in any event, Asagwara suffered a conviction
under pre-IIRIRA law . Second, it concluded that the IJ did not abuse his
discretion in denying a waiver, and alternatively, that new immigration
regulations precluded waiver.
A sagw ara now petitions this court for review.
D ISCUSSION
W e review the BIA ’s legal and constitutional determinations de novo.
Ferry v. Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006). And while we may
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ordinarily review the agency’s factual findings, checking for substantial evidence,
id. at 1130, we lack jurisdiction to do so in this case, see infra Part II.
I.
Under the INA, “[a]ny alien w ho is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A )(iii) (emphasis
added). The INA did not, however, define “conviction.” See M agana-Pizano v.
INS, 200 F.3d 603, 613 (9th Cir. 1999). Consequently, the BIA announced in
1988:
As a general rule, a conviction will be found for immigration
purposes w here all of the following elements are present:
(1) a judge or jury has found the alien guilty or he has entered
a plea of guilty or nolo contendere or has admitted sufficient facts to
warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or
restraint on the person’s liberty . . . .; and
(3) a judgment or adjudication of guilt may be entered if the
person violates the terms of his probation or fails to comply with the
requirements of the court’s order, without availability of further
proceedings regarding the person’s guilt or innocence of the original
charge.
M atter of Ozkok, 19 I. & N. Dec. 546, 551-52 (BIA 1988).
Eight years later, through IIRIRA, Congress defined “conviction” as a
formal judgment of guilt or, if adjudication has been withheld, where (i) the alien
has been found guilty, has entered a plea of guilty or nolo contendere, 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.
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8 U.S.C. § 1101(a)(48)(A). Additionally, Congress provided that the definition
“‘shall apply to convictions and sentences entered before, on, or after the date
of’” enactment. M oosa v. INS, 171 F.3d 994, 1006 (5th Cir. 1999) (quoting and
emphasizing in part IIRIRA § 322(c)).
Asagwara contends that “his deferred sentence after an Alford plea was not
a conviction for an aggravated felony that would have caused him to be
removable at the time of his plea.” Pet. Br. at 8. But he offers no
comprehendible analysis to support this contention. Asagwara’s argument on
appeal to the BIA was slightly more clear. He claimed that his deferred sentence
was not a conviction under Ozkok, and that IIRIRA’s definition could not be
retroactively applied to supplant Ozkok. Asagwara did not, however, offer any
suggestion as to how a deferral in sentencing would elude the Ozkok definition of
conviction, and the BIA rejected his argument. Asagwara does not mention
Ozkok in his petition to this court. W hile a judicial finding of guilt pursuant to an
Alford plea, in addition to mandatory registration as a sex offender, would seem
to constitute an Ozkok conviction, we simply conclude that Asagwara has failed to
adequately brief this issue for our consideration. See Adler v. Wal-M art Stores,
Inc., 144 F.3d 664, 679 (10th Cir. 1998); see also Fed. R. App. P. 28(a)(9)(A)
(requiring that an appellant’s argument be supported by contentions and
reasoning, with citations to authorities and parts of the record on which the
appellant relies).
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The BIA also recognized that Congress expressly intended to retroactively
apply IIRIRA’s definition, and ruled that retroactive application did not violate
Asagwara’s due process rights. Asagwara does not appear to argue that IIRIRA’s
definition does not cover his situation, 3 but rather, that its coverage is unfair
because he pleaded guilty believing that it w ould not be viewed as a conviction.
Even if w e assume that A sagw ara did not suffer a conviction until IIRIRA, we
cannot conclude that Congress’s express retroactive alteration of “conviction” is
so unfair that it either “shocks the conscience or interferes w ith rights implicit in
the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746
(1987) (describing substantive due process analysis) (quotations and citations
omitted). Indeed, Congress’s ability to retroactively expand the class of aliens
subject to deportation for criminal activity was recognized long before A sagwara
entered his plea. See, e.g., M ulcahey v. Catalanotte, 353 U.S. 692, 694 (1957)
(holding that it was “indisputable . . . that Congress [in enacting the INA] was
legislating retrospectively, as it may do, to cover offenses” that were not
previously grounds for deportation (footnote omitted)); cf. Kuhali v. Reno, 266
F.3d 93, 111 (2d Cir. 2001) (rejecting due process challenge to the retroactive
application of IIRIRA’s “aggravated felony” definition because “Congress has a
3
IIRIRA’s definition was deliberately crafted to encompass, among other
things, deferred adjudications. See H.R. Conf. Rep. No. 104-828, at 224 (1996);
see, e.g., M oosa, 171 F.3d at 1005.
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legitimate interest in protecting society from the commission of aggravated
felonies[,] . . . and legislation that deports aliens who presently commit or who
have committed those acts in the past is a rational means of furthering that
interest”).
W e conclude that the BIA did not err in rejecting Asagwara’s retroactivity
argument. 4
II.
Asagwara next argues that the IJ did not properly weigh the evidence
offered in support of a waiver, including a psychologist’s opinion that Asagwara
is not a pedophile. W e lack jurisdiction, however, to consider whether the IJ
abused his discretion. See Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105,
1107 (10th Cir. 2006) (observing that review of a removal order is limited to
constitutional claims or questions of law when removal is premised on the alien’s
commission of an aggravated felony).
As for the BIA’s alternative ruling that Asagwara is not statutorily eligible
for a waiver, we cannot exercise our Article III power to review a ruling that was
issued as an alternative to grounds over which we lack jurisdiction. In other
words, “if there are two alternative grounds for a decision and we lack
4
The Ex Post Facto Clause does not apply to deportation proceedings.
Galvan v. Press, 347 U.S. 522, 531 (1954).
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jurisdiction to review one, it would be beyond our Article III judicial power to
review the other.” Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005).
The petition for review is D ENIED in part and DISM ISSED in part.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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