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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15267
Non-Argument Calendar
________________________
Agency No. A028-625-559
OLIVER LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 21, 2016)
Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Oliver Lopez, a native and citizen of Nicaragua, seeks review of a final order
of the Board of Immigration Appeals (“BIA”) (1) affirming the Immigration
Judge’s (“IJ”) denial of cancellation of removal and (2) denying his motion to
remand. After careful review, we deny Lopez’s petition.
I. BACKGROUND
Lopez entered the United States in 1986 and received lawful-permanent-
resident status in 1996. In 2001 and again in 2008, he was convicted of possession
of marijuana and cocaine in Florida state court. In February 2010, Lopez was
served with a Notice to Appear (“NTA”), which charged that he was removable
based on these convictions pursuant to Immigration and Nationality Act (“INA”)
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).1 The government submitted the
judgment from Lopez’s 2001 drug conviction, which demonstrated that the Florida
state court withheld formal adjudication, but imposed costs and a suspended
sentence based on a nolo contendere plea.
After an IJ and the BIA deemed him ineligible for cancellation of removal
due to the 2001 drug conviction, Lopez filed a motion to reopen with the BIA,
asserting that his 2001 conviction had been vacated and he was therefore eligible
for cancellation of removal. In support, Lopez attached a one-page state-court
order from 2010, reflecting that the state court had granted Lopez’s motion for
1
The NTA also charged Lopez with removability for a prior battery/domestic violence
conviction. That conviction is not at issue in this appeal.
2
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post-conviction relief and vacated his 2001 drug conviction. The order did not
include any details giving the reason for the vacatur.
The BIA noted that, in light of this evidence, Lopez “may no longer be
removable,” but that it was “unclear from this record whether [Lopez] has met his
burden of proof of demonstrating that his conviction was not vacated under a
rehabilitative statute or to avoid the immigration consequences of the
conviction[.]” Thus, the BIA granted Lopez’s motion to reopen and remanded to
the IJ for further proceedings to determine the basis of the vacatur and whether
Lopez was eligible for relief from removal. After the remand, Lopez did not
provide any further documentation to support the basis of the vacatur.
Upon remand, the government lodged additional charges of removability
against Lopez, alleging that he was convicted of battery in Georgia in 2014 and
was therefore removable under INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony.
In May 2015, the IJ issued his decision. First, he sustained the charge of
removability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based
on his conclusion that Lopez’s Georgia battery conviction qualified as an
aggravated felony. Second, he sustained the charge of removability under INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), based on Lopez’s 2008 Florida drug
conviction. Finally, the IJ denied Lopez’s application for cancellation of removal
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for two reasons. First, he was statutorily ineligible for cancellation relief because
he had been convicted of the aforementioned aggravated felony. Second, he was
statutorily ineligible for cancellation relief because he had not “acquired the
requisite seven years of continuous residence in the United States.” The IJ
determined that Lopez had failed to provide any evidence for the reason underlying
the vacatur of the 2001 drug conviction and, thus, he had failed to meet his burden
of showing that “his conviction was vacated for reasons that would abolish the
conviction for immigration purposes.” Thus, the IJ ordered Lopez be removed to
Nicaragua.
Lopez appealed the IJ’s decision to the BIA, arguing that Florida does not
permit vacatur of a criminal conviction solely for the purpose of avoiding
immigration consequences and, in any event, the reason for the vacatur does not
matter.2 Concurrently with his appeal, Lopez also filed a motion to remand with
the BIA, noting that his Georgia battery conviction had also been vacated.
The BIA dismissed the appeal. It upheld the IJ’s determination that Lopez
was removable both for committing an aggravated felony and for committing a
controlled-substance offense. Further, after writing that, “in the context of a
motion to reopen,” Lopez had the burden of proving “why a conviction was
2
In his brief to the BIA, Lopez also included an argument regarding his mental competency.
Lopez failed to raise that argument on appeal to this Court. Thus, we will consider this issue
abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1226 n.2 (11th Cir. 2005).
4
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vacated,” the BIA “agree[d]” with the IJ that Lopez had not met this burden and
his 2001 drug conviction “remains a conviction for immigration purposes.”
The BIA also denied the motion to remand, writing that “[r]egardless of
whether the battery conviction has been vacated, [Lopez] is still removable under
section 237(a)(2)(B)(i) of the Act, for having been convicted of a controlled
substance violation.” Moreover, the BIA wrote, Lopez’s 2001 conviction “cuts off
his accrual of the requisite 7 years of continuous residence, independent of the
aggravated felony bar to cancellation of removal.”
Lopez appealed the BIA’s decision to this Court, focusing his argument on
the agency’s determination regarding his 2001 drug conviction.
II. DISCUSSION
We review questions of law de novo. Assa’ad v. U.S. Att’y Gen., 332 F. 3d
1321, 1326 (11th Cir. 2003). Additionally, we construe a motion to remand that
seeks to introduce new evidence as a motion to reopen, and generally review the
denial of a motion to reopen for an abuse of discretion. Chacku v. U.S. Att’y Gen.,
555 F.3d 1281, 1286 (11th Cir. 2008). It is within the discretion of the BIA to
deny a motion to reopen for, among other reasons, failure to establish a prima facie
case of eligibility for adjustment of status. Id.
Certain permanent residents who are inadmissible or deportable may have
their removal cancelled if: (1) they have been an alien lawfully admitted for
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permanent resident for not less than five years; (2) they have resided in the United
States for seven continuous years after having been admitted in any status; and
(3) they have not been convicted of an aggravated felony. INA § 240A(a), 8
U.S.C. §1229b(a). However, “any period of continuous residence . . . shall be
deemed to end . . . when the alien has committed an offense referred to” in INA
§ 212(a)(2), 8 U.S.C. § 1182(a)(2). INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
Section 1182, in turn, provides that “any alien convicted of” a controlled-substance
offense is inadmissible. INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Section 1101(a)(48)(A) of the INA defines “conviction” 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.
INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
This Court has explained that a vacated conviction “[i]n the eyes of the State
of Florida . . . is a legal nullity [but] [w]hether it is a nullity for purposes of 8
U.S.C. § 1182(a)(2) and other provisions of federal immigration law . . . depends
on the reason it was vacated.” Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1344
(11th Cir. 2010) (involving the vacatur of Florida convictions for cocaine
trafficking and aggravated assault). A conviction that is vacated because of a
constitutional, statutory, or procedural defect in the underlying proceedings is no
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longer a “conviction” for immigration purposes. Id. However, a vacatur obtained
under a rehabilitative statute or granted “simply in order to help the alien avoid
‘immigration hardships,’ has no effect for immigration law purposes.” Id.; Ali v.
U.S. Att’y Gen., 443 F.3d 804, 810 (11th Cir. 2006) (explaining that “whether a
vacated conviction remains a conviction for purposes of the INA depends upon the
reason the conviction was vacated”). This Court also has determined that “a
vacated state conviction remains effective for immigration purposes if it is not
clear from the record that the vacatur was based on a defect in the underlying
proceedings.” Garces, 611 F.3d at 1344 n.6; Ali, 443 F.3d at 810-12 (upholding
the BIA’s determination that the petitioner failed to establish that his conviction
was vacated based on a substantive or procedural defect in the underlying
proceedings where the state court said only that it granted vacatur “for good cause
shown and by consent of the parties”).
The burden of proving a prior conviction supporting deportability is on the
government at the removal proceeding in the case of an alien admitted to the
United States. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). It is not disputed
here that Lopez’s 2008 drug conviction supported the removal order. The question
on appeal is whether Lopez showed he was eligible for relief from removal. The
burden of establishing relief from removal lies with the alien requesting such relief.
INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).
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Here, based on our precedent, we cannot say that the BIA erred in
determining that Lopez was ineligible for cancellation of removal because of his
2001 drug conviction. As an alien seeking relief from removal, Lopez had the
burden of proving his eligibility for such relief. See INA § 240(c)(4)(A), 8 U.S.C.
§ 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). And yet the sole piece of evidence that he
submitted demonstrating the vacatur of his 2001 conviction was silent as to the
reasons for the vacatur. Thus, the record is unclear as to the reasons for the
vacatur, and the conviction still stands for immigration purposes. See Garces, 611
F.3d at 1344 n.6; Ali, 443 F.3d at 811-12. 3 Despite Lopez’s arguments that
post-conviction events such as rehabilitation or immigration hardships were not
grounds to award vacatur in Florida, the statute at the time was not exhaustive and
allowed for vacatur on any grounds subject to collateral attack. See Fla. R. Crim.
P. 3.850 (2010) (stating the grounds for awarding vacatur in Florida).4 In addition,
because Lopez obtained lawful-permanent-resident status in 1996, the 2001
conviction served to cut off Lopez’s continuous residence before the seven years
required for relief from removal. INA § 240A(a), 8 U.S.C. §1229b(a); INA
3
Lopez does not raise the argument that was litigated before the IJ and BIA prior to the
remand—whether the institution of costs suffices as “punishment” or “penalty” under INA
§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). Thus, we will not address this issue. See
Sepulveda, 401 F.3d at 1226 n.2.
4
While Lopez argued on appeal to our Court that a judgment vacating a criminal conviction by a
court of competent jurisdiction must be given full faith and credit, he did not exhaust this
argument before the BIA. Therefore, we will not consider it. See Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
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§ 240A(d)(1), 8 U.S.C. § 1229b(d)(1); INA § 212(a)(2)(A)(i)(II), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II).
Finally, the BIA did not abuse its discretion in denying Lopez’s latest
motion to remand. As the BIA pointed out, regardless of whether Lopez’s Georgia
battery conviction may properly be considered an aggravated felony, he remains
removable based on the 2008 drug conviction, and his application for cancellation
of removal was properly denied based on his 2001 drug conviction, for the reasons
given above. Thus, Lopez failed to establish a prima facie case of eligibility for
adjustment of status, and the BIA was within its discretion to deny his motion. See
Chacku, 555 F.3d at 1286.
For these reasons, we deny Lopez’s petition.
PETITION DENIED.
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