Fequiere v. Ashcroft

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 25, 2002
No. 98-3048 THOMAS K. KAHN
CLERK

I.N.S. No. A24 673 520

THEODORE FEQUIERRE,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of a Final Order of
the Board of Immigration Appeals

(January 25, 2002)

Before ANDERSON, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.
TJOFLAT, Circuit Judge:

On January 24, 1990, an immigration judge issued an order to show cause

why the appellant, a Haitian national who had been admitted into the United States

for permanent residence and was living in Palm Beach County, Florida, should not

be deported under section 241(a) of the Immigration and Nationality Act (“the

Act”), 8 U.S.C. § 1227(a) (1999), because, in 1986, he had committed an

aggravated felony, the possession of cocaine with intent to distribute, in violation

of Fla. Stat. Ann. § 893.13 (West 2000). Responding to the order to show cause,

appellant requested a withholding of deportation pursuant to section 212(c) and (h)

of the Act, 8 U.S.C. § 1182(c) and (h) (1999).1 In support of his request, appellant

represented that he had a wife and six minor children living in Palm Beach County,

and that he was their principal source of support.2

Appellant’s case was heard before an immigration judge. At the hearing,

appellant, after being place under oath, admitted that he had been convicted as

1
Section 212(c) authorized the Attorney General to grant a discretionary waiver of
deportation allowing an alien to remain in the United States despite a finding of deportability.
That section is inapplicable in this case because it was repealed by section 304(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208,
§ 304(b) 110 Stat. 3009-546, 3009-597 (1996).
Section 212(h) authorizes the Attorney General to withhold deportation of an alien if
deportation “would result in extreme hardship to the United States Citizen or lawfully resident
spouse, parent, son, or daughter of such alien.” 8 U.S.C. § 1182(h)(2)(B) (1999).
2
Appellant was employed as a minister of a church in West Palm Beach.

2
recited in the order to show cause. The judge sympathized with appellant’s

situation – that his deportation would deprive his wife and children of a husband

and father – but said that Congress had spoken: appellant’s 1986 conviction

required that he be deported.3 The judge denied appellant section 212 relied and

ordered him deported.

Appellant appealed the immigration judge’s decision to the Board of

Immigration Appeals (BIA).4 There, he contended that his 1986 conviction should

be disregarded because he had not committed the offense of which he was

convicted, possession of cocaine with intent to distribute. He admitted that he had

been present in a house in which the police had found cocaine, but that he was an

innocent bystander who had no knowledge that the drugs were there. He pled

guilty because the public defender had advised him that, if he did so, he would not

have to go to prison. If his conviction were disregarded, he argued, that he had a

3
Section 212(h) precludes a withholding of deportation “in the case of an alien who has
previously been admitted to the United States as an alien lawfully admitted for permanent
residence if . . . since the date of such admission the alien has been convicted of an aggravated
felony. . . .” Appellant’s 1986 conviction for violating Fla. Stat. Ann. § 893.13 constituted an
aggravated felony under the Uniform Controlled Substance Act. See 21 U.S.C. § 802 (1999).
4
At the conclusion of his hearing before the immigration judge, appellant waived his
right of appeal; when asked if he would like to appeal or accept the decision, he responded “I
accept it.” After appellant lodged his appeal with the BIA, the INS’s assistant district counsel
filed a memorandum with the BIA urging it to dismiss the appeal on the basis of appellant’s
waiver. The BIA disregarded counsel’s request and entertained the merits of appellant’s
arguments on appeal.

3
wife and six children living in Palm Beach and that he dutifully supported them

should warrant the relief he was seeking. The BIA affirmed. Appellant’s 1986

conviction constituted an aggravated felony and made appellant ineligible for

withholding of deportation. Appellant now appeals the BIA’s decision.

II.

In his brief to us, appellant raises three issues. Only one is pertinent:

whether, at the hearing before the immigration judge, the INS established that

appellant had been convicted of the 1986 drug offense cited in the order to show

cause.5 We conclude that the evidence before the judge established that fact, and

therefore affirm.

Section 240a(c)(3) of the Act required the INS to establish “by clear and

convincing evidence” that appellant, an admitted alien, was deportable. 8 U.S.C. §

1229a(c)(3) (1999). In this case, to establish that appellant was deportable, the INS

had to prove was that he had been convicted of the drug offense cited in the order

5
The other issues raised in appellant’s brief are (1) whether we have jurisdiction to
determine if appellant was “admitted for permanent residence” and (2) whether the immigration
judge conducted the hearing as if appellant was an alien who had not been lawfully admitted into
the United States, rather than an alien who had been admitted for permanent residence, as the
order to show cause alleged. Since the order to show cause alleged that appellant was “legally
admitted for permanent residence,” the INS removed the issue of appellant’s admission status
from the case. Accordingly, the only question to be decided by the immigration judge was
whether appellant had been convicted of the offense cited in the order to show cause, a violation
of Fla. Stat. § 893.13.

4
to show cause. Under section 1229a(c)(3)(B), any of the following “shall

constitute proof of a criminal conviction”:

(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates the existence of
the conviction.
(iv) Official minutes of a court proceeding or a transcript of a court
hearing in which the court takes notice of the existence of the
conviction.
(v) An abstract of a record of conviction prepared by the court in
which the conviction was entered, or by a State official
associated with the State’s repository of criminal justice
records, that indicates the charge or section of law violated, the
disposition of the case, the existence and date of conviction, and
the sentence.
(vi) Any document or record prepared by, or under the direction of,
the court in which the conviction was entered that indicates the
existence of a conviction.
(vii) Any document or record attesting to the conviction that is
maintained by an official of a State or Federal penal institution,
which is the basis for that institution’s authority to assume
custody of the individual named in the record.

8 U.S.C. § 1229a(c)(3)(B).

Appellant asks us to reverse the BIA’s decision because, at the hearing

before the immigration judge, the INS did not establish his 1986 conviction by one

of these seven forms of proof. In his view, section 1229a(c)(3)(B) required such

proof; the fact that he acknowledged under oath that he had been convicted as

alleged would not constitute the “reasonable, substantial, and probative evidence”

required to sustain the immigration judge’s decision. 8 U.S.C. § 1229a(c)(3)(A).

5
The problem with appellant’s argument is that section 1229a(c)(3)(B) does

not state that the forms of proof it lists constitute the sole means of establishing a

criminal conviction; rather, the statute merely says that such forms “shall constitute

proof of a criminal conviction.” Other forms of proof will suffice if “probative.”

One such form, obviously, is the alien’s admission of the conviction under oath.

The decision of the BIA is, accordingly,

AFFIRMED.