FILED
United States Court of Appeals
Tenth Circuit
June 22, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
VICKERS VIRLEY FRITZGERALD
WAUGH, a/k/a Vickers Virley
Fitzgerald Waugh,
Petitioner, No. 10-9551
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
PETITION FOR REVIEW OF A DECISION OF THE
BOARD OF IMMIGRATION APPEALS
Submitted on the briefs: *
Hakeem Ishola, Ishola Tarin, P.L.L.C., West Valley City, Utah, for Petitioner.
David V. Bernal, Assistant Director, Tiffany L. Walters, Trial Attorney, and Tony
West, Assistant Attorney General, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior Circuit
Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
McKAY, Circuit Judge.
Petitioner, a Jamaican citizen and lawful permanent resident of the United
States, petitions for review of the decision of the Board of Immigration Appeals
(BIA) ordering him removed. In August 2009, petitioner pled guilty in Utah state
court to one count of unlawful sexual contact with a minor, a third-degree felony
under Utah law. Following his conviction, the government instituted removal
proceedings, and the immigration judge (IJ) found petitioner removable on two
grounds: (1) for sexual abuse of a minor, which constitutes an aggravated felony
under 8 U.S.C. § 1101(a)(43)(A); and (2) for child abuse. The first ground made
petitioner removable under § 1227(a)(2)(A)(iii), and the second ground made him
removable under § 1227(a)(2)(E)(i). 1
While petitioner’s removal proceedings were pending, the Supreme Court
issued its opinion in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1486
(2010), in which it held that, for a non-citizen defendant, the Sixth Amendment
right to effective assistance of counsel includes the right to be advised of the risk
of removal resulting from a guilty plea. Relying on Padilla, petitioner filed a
1
The IJ declined to address whether petitioner’s Utah conviction also
constituted a crime of violence, which would also be an aggravated felony that
would support removal under § 1227(a)(2)(A)(iii).
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motion to withdraw his guilty plea in state court, arguing he was not properly
advised that pleading guilty to the charge of unlawful sexual contact with a minor
would make him removable.
Petitioner also moved the IJ to terminate the removal proceedings.
Petitioner argued that the government had to prove, as part of its burden to
establish grounds for removal by clear and convincing evidence, that the Utah
conviction underlying his removal comported with his right to effective assistance
of counsel as described in Padilla. Petitioner contended the government could
not meet this burden of proof, so the proceedings should be terminated.
Alternatively, he asked the IJ to continue the proceedings until his motion to
withdraw his guilty plea was resolved in state court.
The IJ denied both requests. The IJ held that petitioner’s contention that he
was denied the effective assistance of counsel in connection with his guilty plea
was a collateral attack on his conviction that the IJ did not have authority to
consider and that should be resolved in the state court. The IJ further held that,
until it was vacated or overturned by the state court, petitioner’s conviction
constituted a valid conviction to which the IJ had to give full faith and credit.
The IJ concluded the evidence established petitioner was convicted of unlawful
sexual contact with a minor and that the conviction made him removable under
§ 1227(a)(2)(A)(iii) and § 1227(a)(2)(E)(i). The IJ therefore ordered petitioner
removed.
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Petitioner appealed the IJ’s order to the BIA, arguing the IJ should have
terminated the proceedings because the government could not meet its burden of
proof, or, at a minimum, should have continued the proceedings until the state
court challenge was resolved. Petitioner did not challenge the IJ’s determination
that the conviction, if valid, was grounds for removal under either
§ 1227(a)(2)(A)(iii) or § 1227(a)(2)(E)(i), and he does not challenge that
determination in his petition for review.
The BIA denied petitioner relief on appeal. Like the IJ, the BIA held that
petitioner’s arguments were in the nature of a collateral attack on his conviction
and could not be entertained by the IJ or the BIA. Further, it held that
petitioner’s pursuit of a collateral attack in state court and his contention that his
conviction would ultimately be invalidated based on Padilla did not undermine
the finality of his conviction for immigration purposes. The BIA noted
petitioner’s motion to withdraw his guilty plea was still pending in state court,
and held that, unless and until petitioner’s conviction was overturned by the state
court, it was final for immigration purposes and supported the removal order.
Petitioner makes essentially the same arguments in his petition for review
that he made to the IJ and the BIA, but couches them in constitutional terms,
arguing that he was denied due process in the agency proceedings. He does so, no
doubt, because our jurisdiction to review an order of removal against an
aggravated felon is significantly limited: we may review the removal order only
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to the extent petitioner raises constitutional or legal challenges to the order, see
8 U.S.C. §§ 1252(a)(2)(C), (D).
Petitioner first argues that he was denied due process when the BIA
determined that he had been “convicted of a removable ‘aggravated felony’
offense, notwithstanding that the alleged conviction is not final in Utah state
court and the conviction was not in comport with the Sixth Amendment, given
that Petitioner’s defense counsel failed to disclose true immigration consequences
of the plea as required by Padilla.” Pet’r Opening Br. at 2-3. Petitioner’s
argument relies on two false premises: 1) that the pendency of the state court
proceedings challenging his guilty plea on Sixth Amendment grounds made his
conviction not final for immigration purposes; and 2) that Padilla expanded the
elements the government must prove to establish that an alien has been convicted
of a removable offense, to include proof that the underlying conviction did not
violate the Sixth Amendment.
At the outset, we note that since the BIA issued its decision, the Utah
courts have denied petitioner relief on his motion to withdraw his guilty plea. See
State v. Waugh, No. 20100737-CA, 2010 WL 4379465 (Utah App. Nov. 4, 2010)
(per curiam) (unpublished), cert. denied, 251 P.3d 245 (Utah 2011). Although it
appears that even petitioner would agree his conviction is now final, we conclude
the resolution of the state court proceedings did not moot petitioner’s arguments
about the use of his Utah conviction to support removal. First, even if petitioner
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would concede that his conviction is now final, that would not answer the
question whether the conviction was final at the time the IJ entered the removal
order. Second, the Utah proceedings did not establish whether petitioner’s Sixth
Amendment rights were violated, because the Utah Court of Appeals affirmed the
denial of relief solely on the ground that petitioner’s motion to withdraw his
guilty plea was untimely. See id. at *1. And in any event, under petitioner’s
theory, resolution of his challenge to his conviction by the state court–even on the
merits–would not answer the question whether the IJ could rely on petitioner’s
conviction to support removal absent proof from the government that the
conviction comported with the Sixth Amendment under Padilla.
We turn, then, to petitioner’s arguments, beginning with the government’s
burden of proof. The government bears the burden of proving by clear and
convincing evidence that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A).
When removal is based on a criminal conviction, the government may prove the
existence of the conviction through a variety of documents or records, including
those the government relied on here. See 8 U.S.C. § 1229a(c)(3)(B); Admin R. at
229-237 (containing the information, the amended information, and a certified
copy of the minutes of sentencing and the judgment, sentence and commitment
notice).
In determining whether a conviction supports removal, “[i]mmigration
authorities must look solely to the judicial record of final conviction and may not
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make their own independent assessment of the validity of [the alien’s] guilty
plea. . . . As an administrative agency, the INS has no power to adjudicate the
validity of state convictions underlying deportation proceedings.” Trench v. INS,
783 F.2d 181, 184 (10th Cir. 1986) (internal quotation marks omitted).
Accordingly, “an alien cannot collaterally attack the legitimacy of a state criminal
conviction in a deportation proceeding.” Id.
In Trench, the alien challenged the validity of his conviction on the same
ground petitioner does here: his counsel did not advise him properly about the
risk of removal arising from his guilty plea. Id. at 183. We held that even if trial
counsel’s allegedly incorrect advice violated the Sixth Amendment (an issue on
which the circuit courts were then divided), the alien could not challenge the
validity of his conviction in the immigration proceedings; he had to bring his
challenge in state court. Id. at 183-184. The Sixth Circuit recently considered a
similar challenge based specifically on Padilla and held the alien’s claim of
ineffective assistance was “not a proper one in immigration proceedings. . . .
[A]n alien petitioner may not collaterally attack a criminal conviction that serves
as the basis for the [government’s] initiation of removal proceedings against the
alien . . . on review from a decision of the BIA.” Garcia v. Holder, 638 F.3d 511,
518 (6th Cir. 2011).
Petitioner himself acknowledges that an alien cannot attack the legitimacy
of a state court conviction in immigration proceedings. See Pet’r Opening Br. at
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20 n.11. To circumvent this limitation, petitioner seeks to put the burden on the
government to prove as part of its case that his conviction was constitutional
under the Sixth Amendment. He contends that the Supreme Court’s decision in
Padilla requires this expansion of the government’s burden.
At issue in Padilla was whether the state court properly denied the alien
defendant post-conviction relief on the ground that “the Sixth Amendment’s
guarantee of effective assistance of counsel does not protect a criminal defendant
from erroneous advice about deportation because it is merely a ‘collateral’
consequence of his conviction.” 130 S. Ct. at 1478. The Supreme Court
concluded the state court erred, holding that, before a non-citizen criminal
defendant enters a guilty plea, his counsel has a duty under the Sixth Amendment
to inform him “whether his plea carries a risk of deportation.” Id. at 1486.
Having determined the defendant’s counsel had a duty under the Sixth
Amendment to provide accurate advice about the risk of deportation, the Court
applied the familiar two-prong test of Strickland v. Washington, 466 U.S. 668,
688, 694 (1984), to determine whether counsel’s erroneous advice deprived the
defendant of the effective assistance of counsel. Padilla, 130 S. Ct. at
1482-1484. 2
2
The Court concluded counsel’s advice fell below an objective standard of
reasonableness under the first prong of Strickland, but remanded the action to the
state court to determine whether the defendant could establish the requisite
(continued...)
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In reaching its conclusion that the right to effective assistance of counsel
includes the right to accurate advice about the risk of deportation, the Court noted
that significant changes in immigration law over the past 90 years “have
dramatically raised the stakes of a noncitizen’s criminal conviction” such that,
today, “removal is practically inevitable” for any noncitizen convicted of a
removable offense. Id. at 1480. “[A]s a matter of federal law,” the Court said,
“deportation is an integral part–indeed, sometimes the most important part–of the
penalty that may be imposed on noncitizen defendants who plead guilty to
specified crimes.” Id. (footnote omitted). Petitioner seizes on this language to
argue that because deportation is an integral part of the penalty that may be
imposed in a criminal proceeding, the government must prove in an immigration
proceeding that the alien received constitutionally adequate advice about the
immigration consequences of his plea.
Petitioner does not suggest the government must prove a criminal alien’s
conviction is free of any other constitutional infirmities, even others under the
Sixth Amendment. And, unlike petitioner, we see nothing in Padilla that would
create the unique burden petitioner proposes. Padilla merely established another
way in which a criminal defendant’s Sixth Amendment rights may be violated.
The Court did not suggest that advice about the risk of deportation is
2
(...continued)
prejudice under the second prong. Padilla, 130 S. Ct. at 1482-84, 1485.
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categorically different from other advice that is constitutionally required, and it
applied the same Strickland analysis to the defendant’s claim that applies to other
claims of ineffective assistance of counsel.
Moreover, petitioner ignores a fundamental limitation: neither the IJ nor
the BIA has authority to adjudicate the constitutionality of an underlying criminal
conviction. See Trench, 783 F.2d at 184. If the government had to prove an
alien’s underlying conviction satisfied the Sixth Amendment under Padilla, the IJ
would necessarily have to determine whether the conviction was constitutional as
part of his assessment of the evidence supporting removal. And to determine
whether a conviction comported with Padilla, in particular, the IJ would likely
have to hold an evidentiary hearing to determine what advice, if any, the alien’s
criminal defense counsel provided. Inserting these issues into immigration
proceedings “could not, as a practical matter, assure a forum reasonably adapted
to ascertaining the truth of the claims raised. It could only improvidently
complicate the administrative process.” Zinnanti v. INS, 651 F.2d 420, 421
(5th Cir. 1981) (per curiam).
Further, petitioner would have the government prove a negative–the lack of
a Sixth Amendment violation–by clear and convincing evidence, and do so when
few, if any, of the operative facts about defense counsel’s advice were within its
knowledge. Finally, requiring the government to prove–and the IJ to find–that the
alien’s underlying conviction comported with the Sixth Amendment could lead to
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contrary results in the administrative proceedings and any state or federal court
proceedings challenging the alien’s conviction. Thus, from both a legal and a
practical standpoint, petitioner’s contention that “the Government must prove as
an element of ‘conviction’ whether such was had in comport with the Sixth
Amendment to the United States Constitution,” Pet’r Opening Br. at 26, is
untenable.
Petitioner’s contention that his conviction was not final in light of the
pending state court proceedings is likewise unsupportable. The Immigration and
Nationality Act defines “conviction” for immigration purposes as
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
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). We recently explained that “Congress adopted [this]
definition of ‘conviction’ in 1996 specifically to supplant a prior BIA
interpretation that had required deportation to wait until direct appellate review
(though never collateral review) of the conviction was exhausted or waived.”
United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir.), cert. denied,
131 S. Ct. 368 (2010). Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who
is convicted of an aggravated felony at any time after admission is deportable.”
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“From this, it follows that an alien is lawfully deportable as soon as a formal
judgment of guilt is entered by a trial court.” Adame-Orozco, 607 F.3d at 653.
Thus, “while the alien may have the right to pursue appellate or collateral relief
for an aggravated felony conviction under various provisions of state and federal
law, the government need not wait until all these avenues are exhausted before
deporting him.” Id.; see also Paredes v. Att’y Gen. of U.S., 528 F.3d 196, 198-99
(3d Cir. 2008) (holding that “pendency of post-conviction motions or other forms
of collateral attack . . . does not vitiate finality [for removal purposes], unless and
until the convictions are overturned as a result of the collateral motions”)
(collecting cases). Nothing in Padilla alters these long-standing principles. We
therefore reject petitioner’s contention that the IJ and BIA erred in relying on his
Utah conviction to support his removal.
Though he devotes little attention to it, petitioner also argues the IJ and
BIA erred in denying his request to continue the removal proceedings until his
motion to withdraw his guilty plea was resolved in state court. Petitioner
attempts to frame this argument as a denial of due process, suggesting the BIA
ignored its own (unidentified) precedents. It appears petitioner’s true objection,
however, is to the way the IJ and BIA exercised their discretion: they should
have found the circumstances warranted a continuation. This challenge raises
neither a constitutional nor a legal issue, so we are without jurisdiction to review
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it. See 8 U.S.C. § 1252(a)(2)(C), (D). And in any event, the issue is moot now
that the state court proceedings have concluded.
The petition for review is denied.
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