[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nov. 24, 2009
No. 09-11468
THOMAS K. KAHN
Non-Argument Calendar
CLERK
_________________________
Agency No. A072-811-311
CLARIBEL ALTAMIRANO-TORRES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(November 24, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
On June 28, 2000, Claribel Altamirano Torres, the petitioner, was admitted
into the United States as a lawful permanent resident. On November 7, 2003, she
was convicted in the Circuit Court of Dade County, Florida, on a plea of guilty to
grand theft in the third degree, in violation of Fla. Stat. § 812.014(2)(c), and was
sentenced to probation for one year. On March 3, 2003, following a trip to
Nicaragua, she applied for readmission at the Miami International Airport as a
returning lawful permanent resident of the United States, and was paroled into this
country pursuant to 8 U.S.C. § 1 182(d)(5). A.R. 232 Pet. Br. 8. On May 20, 2005,
the Department of Homeland Security ("DHS") served her with a Notice to
Appear, charging her with inadmissibility under 8 U.S.C. § 11 82(a)(2)(A)(i)(I), as
an alien who has been convicted of, or who admits having committed, or who
admits committing acts which constitute the essential elements of a crime
involving moral turpitude.
Torres appeared with counsel before an Immigration Judge (“IJ”) in Miami
on May 10, 2006, admitted the factual allegations of the Notice to Appear, and
conceded inadmissibility as charged. She indicated, through counsel, that she
would seek a waiver of her inadmissibility under 8 U.S.C. § 1182(h), or relief from
removal in the form of asylum, withholding of removal, or protection under the
U.N. Convention Against Torture.
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On May 22, 2007 the IJ found Torres inadmissible as charged based on her
admissions and concession, as well as on the record of conviction.
The IJ further found that she was ineligible for a waiver under 8 U.S.C. § 1182(h)
because she had not resided in the United States continuously for seven years prior
to the issuance of the Notice to Appear. The IJ denied her application for asylum
because she failed to establish that she had been persecuted in the past, or that she
had a well-founded fear of future persecution. Because Torres failed to establish
eligibility for asylum, the IJ held that she also failed to meet the higher burden of
establishing eligibility for withholding of removal or to demonstrate that it
was more likely than not that she would be tortured by or with the acquiescence of
Nicaraguan officials upon her return. The IJ therefore denied all forms of relief
and ordered Torres removed to Nicaragua.
Torres appealed the IJ's decision to the Board of Immigration Appeals
(“BIA”) on June 20. 2007, arguing that the IJ erred in denying her relief and
asserting that she was eligible for cancellation of removal. In lieu of a brief, she
moved the BIA to terminate proceedings, claiming that the circuit court had
vacated her conviction and, thus, that she no longer had a conviction for
immigration purposes.
On November 21, 2008, the BIA denied her motion to terminate and
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dismissed her appeal. She did not seek review of its decision in this court; instead,
on January 6, 2009, she moved the BIA to reopen, arguing that, based on the
documents accompanying her motion, her conviction was vacated due to a
procedural defect in her guilty plea and should be afforded full faith and credit.
The BIA denied her motion to reopen, concluding that the documents she had
provided failed to show that her conviction had been vacated due to a procedural
defect. And, because she had not presented any new material evidence regarding
country conditions, she failed to demonstrate prima facie eligibility for asylum.
Petitioner now seeks review of the BIA's denial of her motion to reopen her
removal proceedings. Finding our decision in Mohammed Salim Au v. United
States Att'y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam), dispositive for
each of her claims of which we have jurisdiction, we deny Torres's petition.
As an initial matter, we note that Torres has a Florida conviction for grand
theft, a crime involving moral turpitude, which would ordinarily preclude us from
reviewing her petition under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).
Because she is raising a constitutional issue of due process and a full faith and
credit question of law, we are not precluded from hearing her case. 8 U.S.C.
§ 1252(a)(2)(D); see also Ali, 443 F.3d at 809. However, because she did not
timely petition for review from the BIA's original removal order, we are
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jurisdictionally barred from hearing her arguments concerning that order, and to
that extent we dismiss her petition for review.
I.
We review the B IA's denial of a motion to reopen for abuse of discretion.
Ali, 443 F.3d at 808. That is, our review is limited to determining whether the
BIA exercised its discretion in an arbitrary or capricious manner. Id. The moving
party bears a heavy burden as motions to reopen are disfavored, especially in
removal proceedings. Id. at 808, 813. A motion to reopen removal proceedings
“shall state the new facts that will be proved at a hearing to be held if the motion is
granted. and shall be supported by affidavits or other evidentiary material.” 8
U.S.C. § 1229a(c)(7); , Ali, 443 F.3d at 808. “A motion to reopen proceedings
shall not be granted unless it appears to the [BIAJ that evidence sought to be
offered is material and was not available and could not have been discovered or
presented at the former hearing. . . .” 8 C.F.R. § 1003.2(c)(1); Ali, 443 F.3d at 808.
Torres maintains that, in entertaining her motion to reopen, the BIA
improperly placed the burden on her to demonstrate that the Circuit Court of Dade
County vacated her grand theft conviction for a procedural or substantive defect.
The BIA therefore denied her due process of law. We disagree. As the moving
party, Torres bore the burden of convincing the BIA that her motion should be
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granted. Hence, requiring her to show that the circuit court vacated her conviction
for a procedural or substantive defect did not deny her due process.
II.
Torres also argues that the BIA erred in denying her motion to reopen by
not affording full faith and credit to the circuit court's order vacating her
conviction.
Section 1101(a)(48)(A) of Title 8 of the United States Code states that:
The term 'conviction" means, with respect to an alien, 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 nob 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. § ll01(a)(48)(A).
Whether a conviction remains a conviction for purposes of the INA depends
upon the reason the conviction was vacated. If a court vacates the conviction for a
procedural or substantive defect in the underlying criminal proceedings, the
respondent no longer has a conviction for immigration purposes; however, if a
court vacates the conviction for reasons unrelated to the merits, such as
rehabilitation or immigration purposes, then the conviction remains intact for
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immigration purposes. Matter of Pickering, 23 I.&N. Dec. 621, 624 (BIA 2003)
cited with approval in Ali, 443 F.3d at 810.
Torres's conviction for grand theft is a conviction for immigration purposes.
Torres failed to establish that the circuit court vacated her conviction for a
procedural or substantive defect. The BIA therefore did not violate the Full Faith
and Credit Clause in denying her motion to reopen.
PETITION DISMISSED, in part; DENIED, in part.
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