FILED
United States Court of Appeals
Tenth Circuit
June 28, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
IOAN JOHN VASILIU,
Petitioner,
v. No. 10-9563
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER
Before MATHESON, McKAY and EBEL, Circuit Judges.
The Attorney General has filed a motion to publish the order and judgment
previously issued on June 7, 2011. The motion is GRANTED. The published
opinion is filed nunc pro tunc to that date, and a copy is attached.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
June 7, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
IOAN JOHN VASILIU,
Petitioner,
v. No. 10-9563
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
Submitted on the briefs: *
Michael G. McAtee, McAtee & Woods, P.C., Oklahoma City, Oklahoma, for
Petitioner.
Shelley R. Goad, Assistant Director, Jennifer R. Khouri, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice, Washington,
D.C., for Respondent.
Before MATHESON, McKAY and EBEL, Circuit Judges.
*
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.
Ioan John Vasiliu petitions for review of a final order of removal by the
Board of Immigration Appeals (BIA), affirming an immigration judge’s
determination that he is removable as a criminal alien. We dismiss the petition
for lack of jurisdiction.
Mr. Vasiliu is a native and citizen of Romania who was admitted to the
United States as a permanent resident in 1982. In 1991, he pled guilty in New
York to criminal possession of a weapon. In 2002, he pled guilty in Oklahoma to
assault and battery/domestic abuse and was sentenced to a one-year term of
imprisonment, which was suspended. Based upon these convictions, the
Department of Homeland Security served Mr. Vasiliu with a notice to appear in
August 2009, charging him with removability pursuant to 8 U.S.C.
§§ 1227(a)(2)(A)(iii) (applicable to aliens convicted of aggravated felonies);
1227(a)(2)(C) (applicable to aliens convicted of certain firearms violations); and
1227(a)(2)(E)(i) (applicable to aliens convicted of crimes of domestic violence).
In a hearing before an immigration judge (IJ), Mr. Vasiliu admitted all of
the allegations in the notice to appear and conceded removability pursuant to the
cited statutory provisions. He did not submit any application for relief from
removal. He represented, however, that his domestic-abuse conviction had been
reopened by the Oklahoma state court and his New York firearms conviction had
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been overturned. The IJ granted Mr. Vasiliu a continuance to allow him to obtain
documentation to support his claims that the criminal convictions supporting the
removability charge were not final. He subsequently submitted to the
Immigration Court a copy of an application for post-conviction relief that he had
filed in Oklahoma state court regarding his domestic-abuse conviction.
The IJ issued a written decision finding that Mr. Vasiliu had conceded
removability based on the three charges against him, including the charge under
§ 1227(a)(2)(A)(iii) that he was removable as an aggravated felon, defined in
8 U.S.C. § 1101(a)(43)(F) as “a crime of violence . . . for which the term of
imprisonment [is] at [] least one year.” The IJ noted his application for
post-conviction relief, but found that his Oklahoma conviction for domestic abuse
was a final conviction based on his guilty plea, which was not appealed and had
not been vacated. The IJ held that Mr. Vasiliu was ineligible for relief from
removal and therefore ordered him removed to Romania.
Mr. Vasiliu appealed to the BIA, which issued a brief order affirming the
IJ’s decision for the reasons stated therein. Addressing his contention that his
guilty plea to domestic abuse was constitutionally defective under Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), the BIA agreed with the IJ that there was no
evidence in the record that the conviction had been invalidated on that basis. The
BIA stated the Padilla “decision has done nothing to alter the longstanding rule
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that, unless the judgment is void on its face, a conviction cannot be collaterally
attacked in removal proceedings.” Admin. R. at 3.
Mr. Vasiliu raises a single contention on appeal, asserting that his
domestic-abuse conviction should be vacated because his criminal defense
counsel provided constitutionally ineffective assistance by failing to advise him
regarding the removal consequences of his guilty plea. He relies on the Supreme
Court’s holding in Padilla, that the Sixth-Amendment right to effective assistance
of counsel requires criminal defense counsel to inform a client whether a guilty
plea carries a risk of deportation. See 130 S. Ct. at 1486.
The government argues that, under 8 U.S.C. § 1252(a)(2)(C), this court
does not have jurisdiction to review the BIA’s order finding Mr. Vasiliu
removable as an aggravated felon. See id. (depriving courts of jurisdiction to
review removal orders against criminal aliens, including aggravated felons
covered by § 1227(a)(2)(A)(iii)). This jurisdictional prohibition is qualified by
§ 1252(a)(2)(D), however, which provides that “[n]othing in [§ 1252(a)(2)(C)]
which limits or eliminates judicial review[] shall be construed as precluding
review of constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals.” As we explained in Vargas v.
Department of Homeland Security, 451 F.3d 1105, 1107 (10th Cir. 2006), the
combined effect of these interactive provisions grants us jurisdiction over orders
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removing aggravated felons, but only insofar as the petition for review raises
constitutional or legal challenges to the removal order.
The government maintains that our jurisdiction under § 1252(a)(2)(D)
extends only to the review of colorable constitutional claims and that
Mr. Vasiliu’s Padilla claim is substantively meritless. But whether his contention
has merit or not, we cannot address it because a challenge to an alien’s criminal
conviction, upon which a removal order is based, is beyond the scope of removal
proceedings. See Trench v. INS, 783 F.2d 181, 183-84 (10th Cir. 1986).
Like Mr. Vasiliu, the petitioner in Trench argued in his deportation
proceeding that he had been denied effective assistance of counsel when his
criminal defense counsel failed to advise him of the possibility of deportation as a
result of his guilty pleas. See id. at 183. While noting this constitutional
question remained unsettled at that time, we did not reach the issue because “an
alien cannot collaterally attack the legitimacy of a state criminal conviction in a
deportation proceeding.” Id. at 184. We explained that administrative removal
proceedings are not “a forum reasonably adapted to ascertaining the truth of the
claims raised.” Id. (quotation omitted). Rather, “[i]mmigration authorities must
look solely to the judicial record of final conviction and may not make their own
independent assessment of the validity of [an alien’s] guilty plea.” Id. (quotation
omitted). Thus, “[o]nce the conviction becomes final, it provides a valid basis for
deportation unless it is overturned in a post-conviction proceeding.” Id.
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(quotation omitted); see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29
(10th Cir. 2005) (following consensus view that conviction vacated on the merits
in state-court post-conviction proceeding cannot support removal).
Even after our jurisdiction to review removal orders against aggravated
felons was partially restored by § 1252(a)(2)(D), to the extent a petition raises
“constitutional claims or questions of law,” we have adhered to the rule that
collateral challenges to predicate criminal convictions “are beyond the scope of
these proceedings,” Vargas, 451 F.3d at 1107 (declining to consider due-process
claims with respect to aggravated-felony conviction, including claim that criminal
defense counsel told alien guilty pleas would not subject him to deportation).
And the Supreme Court’s decision in Padilla did not alter that rule. See Garcia v.
Holder, 638 F.3d 511, 518 (6th Cir. 2011) (holding alien could not raise in
immigration proceeding a claim of ineffective assistance of criminal defense
counsel based on holding in Padilla).
Mr. Vasiliu may challenge, in a proper forum, the constitutionality of his
guilty plea resulting in his domestic-abuse conviction. Indeed, he has raised his
claim of ineffective assistance in his state-court application for post-conviction
relief. But he may not collaterally attack that conviction in this removal
proceeding. 1 Because the only constitutional objection asserted in the petition
1
To the extent Mr. Vasiliu contends that the removal order itself violates due
(continued...)
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raises collateral issues that are, for established reasons, categorically beyond the
scope of our review, we lack jurisdiction over the proceeding.
The petition for review is DISMISSED.
1
(...continued)
process because of his counsel’s ineffective assistance with respect to his guilty
plea to domestic abuse, such a claim would necessarily require us to determine
the merits of his collateral attack on that conviction.
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