Sanusi v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0032p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Petitioner, -
HENDRY SANUSI,
-
-
-
Nos. 05-3355/3676
v.
,
>
ALBERTO R. GONZALES, Attorney General, -
Respondent. -
N
On Petition for Review from the
Board of Immigration Appeals.
No. A79 106 176.
Argued: July 27, 2006
Decided and Filed: January 23, 2007
Before: SILER, McKEAGUE, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Scott E. Bratton, MARGARET WONG & ASSOCIATES, Cleveland, Ohio, for
Petitioner. Mary Jane Candaux, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Scott E. Bratton, MARGARET WONG & ASSOCIATES,
Cleveland, Ohio, for Petitioner. Mary Jane Candaux, Mark C. Walters, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
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GRIFFIN, Circuit Judge. In these consolidated appeals, petitioner Hendry Sanusi petitions
for review of two orders of the Board of Immigration Appeals (the “BIA”). We deny the petitions
for review on the ground that the state court’s vacation of Sanusi’s conviction was ineffective for
immigration purposes because it was done solely for the purpose of ameliorating the immigration
consequences to petitioner. Zaitona v. I.N.S., 9 F.3d 432 (6th Cir. 1993). For this reason, we hold
that the present case is distinguishable from Pickering v. Gonzales (amended opinion), 465 F.3d 263
(6th Cir. 2006).
I.
Petitioner Sanusi, a native and citizen of Indonesia, entered the United States on August 16,
1999, as a student pursuant to an F-1 student visa. On January 3, 2002, petitioner was cited for
property theft in violation of ARK. CODE ANN. § 5-36-103, which apparently occurred in the city of

1
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Conway, Faulkner County, Arkansas. The details of the crime are not set forth in the record or
briefs. The offense is, at a minimum, a “class A misdemeanor” (§ 5-36-103(b)(4)) with a maximum
possible sentence of one year in prison.1 ARK. CODE ANN. § 5-4-401(b)(1). In petitioner’s case, the
Faulkner County district court ordered him to pay a $500 “criminal fine” and $100 in “criminal
costs.” See ARK. CODE ANN. § 5-4-323(e) (authorizing a fine “not exceeding one thousand
dollars”). On January 22, 2003, petitioner paid the fine in lieu of a court appearance.
On March 26, 2003, the Department of Homeland Security (the “DHS”) charged petitioner
with removability as an alien convicted of a crime involving moral turpitude within five years of his
admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(¥).2
On July 9, 2003, petitioner, through counsel, filed a Petition for Writ of Coram Nobis (the
“Petition”) with the Faulkner County district court, requesting vacation of his theft conviction. In
the Petition, Sanusi referenced the deportation proceedings, noted that he was subject to deportation
action, and averred that “[t]he only basis for preventing this collateral consequence of deportation
is through a vacation of the conviction” (Petition, ¶¶ 4, 5). Petitioner further asserted that he “was
not advised on the citation that by paying the fine and avoiding a court appearance his guilty plea
could or would result in drastic and severe immigration consequences, specifically deportation from
the United States” (Id. at ¶ 6). In this regard, petitioner complained that:
In this present case the District Court of [sic] established a procedure whereby one
could simply pay the fine and resolve the matter expeditiously, without resort to
court appearances and other costly efforts. The procedure does not contemplate that
aliens who follow the established procedures subject themselves to deportation and
lifetime banishment from the United States. Without relief under this Petition for a
Writ of Coram Nobis, the reasonable procedure established by this court will be
converted to a “Life Sentence” by the [I]mmigration Act.
***
The fundamental and constitutional fault in the present case is in the assertion that
the (petitioner) was not on notice by the Arkansas Uniform Enforcement Citation nor
advised of the drastic immigration consequences of the guilty plea, which occurred
when he paid the fine. It is highly likely that had petitioner been aware of the lurking
harm to the petitioner and his entire family resulting from the payment of the fine,
other creative means would have been implemented to assure a just and fitting
punishment for the crime without risking this immigration consequence.

1
ARK. CODE ANN., § 5-36-103(a) provides:
A person commits theft of property if he or she knowingly:
(1) Takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest
in, the property of another person, with the purpose of depriving the owner of the property; or
(2) Obtains the property of another person, by deception or by threat, with the purpose of
depriving the owner of the property.
2
This statute provides in pertinent part that “[a]ny alien who . . . is convicted of a crime involving moral
turpitude committed within five years . . . after the date of admission, and . . . is convicted of a crime for which a
sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(¥). This court has held that
“[t]heft is considered a crime of moral turpitude.” Bakal v. Ashcroft, 56 F. App’x 650, 654 (6th Cir. 2003) (citing Matter
of Grazley, 14 I. & N. Dec. 330, 332, available at 1973 WL 29441 (BIA 1973)). Petitioner does not contest the
categorization of his particular theft offense as a crime of moral turpitude.
Nos. 05-3355/3676 Sanusi v. Gonzales Page 3

***
The Immigration Court has set the matter for hearing on July 28, 2003 after which
his fate will be sealed. The Immigration Judge is compelled to order deportation and
he has no authority to do otherwise. There is no appeal of his decision to any Federal
Court.
On August 11, 2003, the Faulkner County district court granted a writ of error coram nobis
(the “Writ”) vacating petitioner’s theft conviction.3 There is no reference in the record or by the
parties regarding whether there was a hearing on the matter, and the certified court docket entry does
not give any explanation for the basis for granting the Petition. It merely notes: “On 8-11-03,
Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City attorney had
no objection. Judge granted the motion.”
Prior to the master hearing date before the Immigration Judge (“IJ”), petitioner filed a
Motion to Terminate Removal Proceedings for Lack of Final Conviction, arguing that in light of
issuance of the Writ vacating his conviction, he no longer had a conviction for immigration purposes
and respondent thus could not meet its burden of establishing that petitioner was deportable as
charged in the Notice to Appear.
On February 10, 2004, following a hearing to determine whether petitioner was removable
as charged in the Notice to Appear, the IJ issued his Order and Decision. The IJ found that
petitioner’s record of conviction and his admission to the conviction demonstrated that he was
convicted of a crime involving moral turpitude within the meaning of the Immigration and
Naturalization Act (“INA”). Citing BIA precedent, Matter of Pickering, 23 I. & N. Dec. 621 (BIA
2003), in which the BIA held that the immigration court is not to give effect to an order entered by
a state criminal court when the sole purpose of the order is to provide immigration relief, the IJ
concluded that the Writ vacating petitioner’s conviction was issued by the Arkansas district court
to ameliorate the immigration consequences to petitioner and thus was ineffective in preventing
deportation.
Petitioner appealed the IJ’s adverse decision to the BIA, which affirmed without opinion on
March 3, 2005. Petitioner thereafter timely filed his first petition for review with this court (Case
No. 05-3355).
On April 4, 2005, petitioner filed a motion to reconsider the March 3, 2005, order with the
BIA. In an order dated May 6, 2005, the BIA denied petitioner’s motion. Petitioner then filed his
second petition for review (Case No. 05-3676). The two petitions for review have been consolidated
for consideration by this court.
II.
The BIA had jurisdiction over Sanusi’s petition for review pursuant to 8 C.F.R.
§ 1003.1(b)(3), which confers appellate jurisdiction over decisions of immigration judges in removal
proceedings. The BIA may reconsider any case in which it has rendered a decision. 8 C.F.R.
§ 1003.2(a). This court has jurisdiction under 8 U.S.C. § 1252(a), which gives the Court of Appeals

3
“‘The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some
fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence
or fault of the defendant, was not brought forward before rendition of judgment.’” Clorid v. State, 182 S.W.3d 477, 479
(Ark. 2004) (quoting State v. Larimore, 17 S.W.3d 87, 93 (Ark. 2000)). “‘Coram nobis proceedings are attended by a
strong presumption that the judgment of conviction is valid’” and “‘[t]he mere naked allegation that a constitutional right
has been invaded will not suffice.’” Id. (quoting Larimore, 17 S.W.3d at 93). “The writ of error coram nobis is an
extraordinary writ, known more for its denial than its approval.” Echols v. State, 201 S.W.3d 890, 893 (Ark. 2005).
Nos. 05-3355/3676 Sanusi v. Gonzales Page 4

exclusive jurisdiction to review final orders of removal. Both of petitioner Sanusi’s petitions for
review were timely filed within thirty days of the BIA’s orders. INA § 242(b), 8 U.S.C.
§ 1252(b)(1). Venue is likewise proper because the proceedings before the IJ were completed in
Memphis, Tennessee, within this judicial circuit. 8 U.S.C. § 1252(b)(2).
III.
“In considering a petition for review of a decision of the Board of Immigration Appeals, we
review the Board’s legal determinations de novo . . . and its factual findings under the substantial
evidence standard[.] The substantial evidence standard requires us to uphold the Board’s findings
as long as they are ‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005) (citations omitted).
Findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004).
Where the BIA affirms without opinion the decision of the IJ, this court directly reviews the decision
of the IJ. Denko v. I.N.S., 351 F.3d 717, 730 (6th Cir. 2003).
“The question whether [an alien’s] conviction renders him removable . . . is a non-
discretionary, purely legal question; the Courts of Appeal ordinarily must review such questions de
novo.” Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005).
The BIA’s denial of a motion to reopen or reconsider a removal order is reviewed for an
abuse of discretion. Denko, 351 F.3d at 723 (6th Cir. 2003). “An abuse of discretion can be shown
when the IJ or Board offers no ‘rational explanation, inexplicably depart[s] from established
policies, or rest[s] on an impermissible basis such as invidious discrimination against a particular
race or group.’” Id. (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir. 1982). “When the BIA
adopts the reasoning of the IJ, we review the IJ’s decision to determine whether the BIA abused its
discretion.” Id.
IV.
Recently, in Pickering, our court reaffirmed the well-established principle of law that the
vacation of a conviction is ineffective for immigration purposes if it was done so solely to avoid
immigration hardship:
Pickering first argues that the BIA’s decision fails as a matter of law. However, a
review of that decision and the applicable case law reveals that the BIA correctly
interpreted the law by holding that, when a court vacates an alien’s conviction for
reasons solely related to rehabilitation or to avoid adverse immigration hardships,
rather than on the basis of a procedural or substantive defect in the underlying
criminal proceedings, the conviction is not eliminated for immigration purposes. . . .
This interpretation of the law is consistent with that of other circuits and with our
own interpretation. A conviction vacated for rehabilitative or immigration reasons
remains valid for immigration purposes, while one vacated because of procedural or
substantive infirmities does not. See Zaitona v. I.N.S., 9 F.3d 432 (6th Cir. 1993);
see also Murillo-Espinoza v. I.N.S., 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v.
I.N.S., 208 F.3d 299 (1st Cir. 2000); Sandoval v. I.N.S., 240 F.3d 577 (7th Cir. 2001);
but compare Renteria-Gonzalez v. I.N.S., 322 F.3d 804 (5th Cir. 2002) (holding that
all convictions remain valid for immigration purposes) with Discipio v. Ashcroft, 369
F.3d 472 (5th Cir. 2004) (following precedent in Renteria-Gonzalez, while criticizing
it as overbroad).
Pickering, 465 F.3d at 266.
Nos. 05-3355/3676 Sanusi v. Gonzales Page 5

This court noted, however, that the record upon which the BIA based its decision “appears
to be incomplete” and “[t]here is nothing in the record before us regarding the hearing that the
Canadian court relied upon, in part, to quash the conviction.” Id. at 267. In this regard, this court
stated:
The Petitioner, in his notice of appeal and affidavit, stated that he was appealing his
conviction because of the bar it placed on his permanent immigration to the United
States. . . . The BIA imparted the Petitioner’s motivation for seeking to have the
conviction quashed onto the Canadian court as its rationale for quashing the
conviction. . . . However, the motive of the Petitioner in seeking to have his
conviction quashed is of limited relevance to our inquiry. See Sandoval v. INS, 240
F.3d 577, 583 (7th Cir. 2001). Such motive is relevant only to the extent that the
Canadian court relied upon it in quashing the conviction. As the record before us
does not include a record of the hearing and is, therefore, incomplete, it is impossible
to tell the extent to which the Canadian court relied upon Petitioner’s motive, or even
why the Canadian court acted in the manner it did.
Id. (citation omitted, emphasis added).
The Pickering court distinguished its previous decision in Zaitona, 9 F.3d at 437, upon which
the government relied, noting:
In Zaitona, the only explanation offered by the state court for vacating the conviction
was so that it might consider a Judicial Recommendation Against Deportation
(“JRAD”). Zaitona, 9 F.3d at 437. Immediately following the vacation of his
conviction, Zaitona pleaded guilty to the identical crime. The only difference
between the first and second sentence was the JRAD. Id. In Zaitona, “[i]t was
unimportant to [the Court’s] determination that Zaitona’s attorney may have
originally surrounded his request for the JRAD with language of ineffective
assistance of counsel . . . ,” because it was apparent from the order of the court and
the record that the conviction was vacated solely for immigration reasons. Id.
Unlike Zaitona, in the instant case, the order of the Canadian court is silent on the
question of its motivation, referring instead to the Petitioner’s request, supporting
affidavit, and “hearing.” . . . In Zaitona, the record provided more than a “reasonable
basis” for concluding that the judgment was vacated for immigration reasons.
Indeed, the record clearly revealed “substantial evidence that the [] court’s action
was taken for the sole purpose of relieving Zaitona from deportation.” Zaitona, 9
F.3d at 437. Here, the record before us lacks the record of the hearing upon which
the Canadian judge relied, at least in part, in quashing the conviction.
Id. at 267-68.
Noting that the record in Pickering contained “no reference to the hearing before the
Canadian court, no indication that the BIA had that record in its possession and no indication that
it reviewed it in any fashion to determine the rationale behind the decision of that court,” this court
concluded that the BIA erroneously assumed that the Canadian court adopted the petitioner’s motive
and, in so doing, also erroneously assumed that the Canadian court ignored the legal basis the
petitioner had articulated when he sought to have his conviction quashed – i.e., that pursuant to
§ 24(1) of the Canadian Charter of Rights and Freedoms, his rights had been violated. Id. at 268.
The Pickering court stated:
According to the expert testimony provided by the Petitioner, which was undisputed
by the government, a Canadian court can quash a conviction under § 24(1) of the
Charter only for reasons related to a violation of rights granted Canadian citizens in
Nos. 05-3355/3676 Sanusi v. Gonzales Page 6

the Canadian Charter of Rights and Freedoms. . . . If the Canadian court acted
pursuant to the legal authority cited and relied upon by the Petitioner, it could not
have acted solely for immigration reasons. In presuming that the Canadian court
quashed the conviction for immigration reasons, the BIA concluded that the
Canadian court assumed the Petitioner’s motives as stated in his affidavit and notice
of appeal, but did not consider the legal authority he cited.
Id. at 268 (citations omitted).
We hold that the present case is distinguishable from Pickering on the ground that, unlike
the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the
vacation of his conviction. Rather, in his petition for a writ of coram nobis, Sanusi merely asked
for mercy from the harsh immigration consequences of his conviction and asserted his ignorance of
immigration law at the time he entered his criminal plea of guilty. In this regard, it is well settled
that there is no obligation to advise a criminal defendant of the collateral immigration consequences
of entering a guilty plea. El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002). Petitioner
has not cited any legal authority to the contrary. A colorable legal ground for the granting of a writ
of coram nobis was not raised in Sanusi’s state court petition. Clorid, 182 S.W.3d at 479; Echols,
201 S.W.3d at 893.
Thus, although Sanusi’s motive is not controlling, Pickering, 465 F.3d at 267, the requisite
legal basis is not present in the instant case to effectuate the vacation of Sanusi’s conviction for
immigration purposes. Sanusi’s state court petition and the uncontested order of the Arkansas court
with the docket entry – “On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ
of coram nobis. City Attorney had no objection. Judge granted the motion.” – fail to provide the
evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any
recognized legal ground. On this record, the only reasonable inference that can be drawn is that the
conviction was vacated for the sole purpose of relieving Sanusi from deportation.
For these reasons, we deny the petitions for review.