F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 20, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
VICTO R H UG O B ATR EZ GRAD IZ,
also known as Victor Gradiz,
Petitioner,
v. No. 06-9534
ALBERTO R. GONZALES, United
States A ttorney General,
Respondent.
PETITION FOR REVIEW OF AN O RDER
FROM THE BOA RD O F IM M IGR ATION APPEALS
(AG ENCY NO . A96 196 886)
Catharine A . Bull, (Brett J. Davies, with her on the briefs) Bull & Davies,
Denver, Colorado for the Petitioner.
Anh-Thu P. M ai (M ark C. W alters with her on the briefs), Office of Immigration
Litigation, Department of Justice, W ashington, D.C.
Before L UC ER O, A ND ER SO N, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
Victor Hugo Batrez Gradiz, a citizen of Honduras, has been living in the
United States illegally since 2003. M r. Batrez Gradiz has a wife and a child who
are American citizens. On June 22, 2005, M r. Batrez Gradiz’s wife filed an I-130
petition, which, if approved, would allow M r. Batrez Gradiz to obtain legal
residency.
Only one thing stood in the way of M r. Batrez Gradiz’s obtaining legal
residency: a recent brush with the law. Three months earlier, on M arch 16, 2005,
Petitioner had pleaded guilty to a drug charge in W yoming state court. At the
time the I-130 petition was filed, the plea was still under consideration, pending a
presentence investigation report and a substance abuse assessment.
On June 22, the same day M r. Batrez Gradiz’s I-130 petition was filed, he
appeared in state court to change his plea on the drug charges from guilty to nolo
contendere. Two days later, the court imposed a deferred entry of plea and
deferred sentence, pursuant to W yo. Stat. § 7-13-301. “W ithout entering a
judgment of guilt or conviction, [the court may] defer further proceedings and
place the person on probation for a term not to exceed five (5) years.” Id.
On December 28, 2005, in federal court, the petitioner pleaded guilty to the
misdemeanor of illegal entry into the United States. He received a sentence of
twenty-four hours and time served. On M arch 29, 2006, the Department of
Homeland Security ordered M r. Batrez Gradiz’s removal on the ground that he
had been convicted of an aggravated felony, pursuant to 8 U.S.C. § 1228.
On appeal, M r. Batrez Gradiz contends that his deferred plea agreement is
not a conviction under 8 U.S.C. § 1228 and that the crime to which he pleaded is
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not an aggravated felony subject to deportation. Under 8 U.S.C. § 1252(a)(2)(D),
Petitioner is permitted to appeal questions of law directly to this court. W e
A FFIR M the agency rulings. W e also GRANT the petitioner’s motion seeking
leave to proceed in forma pauperis on appeal.
I.
M r. Batrez Gradiz argues that his no contest plea, probation, and deferred
sentence does not qualify as a conviction under 8 U.S.C. § 1228. The order
deferring the imposition of sentence makes clear that the defendant entered a nolo
plea: “Pursuant to a plea agreement, the Defendant withdrew his guilty plea and
changed his plea to No Contest . . . . The Court found that the plea was knowingly
and voluntarily made . . . .” AR at 9.
The W yoming statute under which M r. Batrez Gradiz’s sentence was
deferred reads, “If a person who has not previously been convicted of any felony
is charged with or is found guilty of or pleads guilty or no contest . . . the court
may, with the consent of the defendant and the state and without entering a
judgment of guilt or conviction, defer further proceedings and place the person on
probation for a term not to exceed five (5) years upon terms and conditions set by
the court.” W yo. St. § 7-13-301.
Under the Immigration and Nationality Act (“INA”), a conviction is:
a formal judgment of guilt of the alien entered by a court or, if adjudication
of guilt has been withheld, where--
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(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.
8 U.S.C. § 1101(a)(48)(A ) (emphasis added). Because an adjudication of guilt
was withheld under W yoming law, we look to subpart (ii), which tells us that
there has been a conviction for purposes of the INA when the alien has entered a
plea of nolo contendere. M r. Batrez Gradiz’s proceedings match this description.
In response, Petitioner cites to a BIA case which is easily distinguishable.
In M atter of Eslamizar, 23 I& N Dec. 684 (BIA 2004), the BIA found that a state-
labeled “violation” was not a conviction for purposes of § 1101(a)(48)(a) when it
was adjudicated using a preponderance-of-the-evidence standard rather than the
standard of proof beyond a reasonable doubt. Petitioner believes this to stand for
the proposition that we must defer to state definitions of conviction— in this case,
the state of Wyoming’s view that M r. Batrez Gradiz has not been convicted of a
crime. In fact, Eslamizar does nothing more than reaffirm our traditional
standard that findings of guilt must be beyond a reasonable doubt.
Petitioner also cites to Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000). Lujan-Arm endariz held that an expunged conviction is not a conviction
for purposes of § 1101(a)(48)(A ). That, too, is distinct from our situation in
several respects. First, expungements do not fall under the plain language of the
conviction definition in the same way that deferred prosecutions do. Secondly,
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the First Offender Act, 18 U.S.C. § 3607, permits the expungement of first-time
simple drug-possession offenses for all purposes, including immigration
adjudications. As the Ninth Circuit noted in Lujan-Arm endariz, there is no reason
to suppose that Congress repealed the First O ffender Act sub silentio. It thus
makes sense to read the § 1101(a)(48)(a) definition to exclude expungements.
Petitioner can point to no similar situation here.
II.
Under the Immigration and Nationality Act (“INA”), an alien who has been
convicted of an aggravated felony may be deported at any time. 8 U.S.C. §
1227(a)(2)(A)(iii). M r. Batrez Gradiz next argues that the crime to which he pled
was not an aggravated felony.
Aggravated felonies, as defined in the INA, include “illicit trafficking in a
controlled substance . . . , including a drug trafficking crime.” 8 U.S.C. §
1101(a)(43)(B). A “drug trafficking crime,” under 18 U.S.C. § 924(c)(2),
includes “any felony punishable under the Controlled Substances Act, 21 U.S.C.
801 et seq.” Hence, all felonies under the CSA are deportable offenses.
In Lopez v. Gonzales, 127 S. Ct. 625 (2006), the Supreme Court took up the
question of whether crimes that are misdemeanors under the CSA but felonies
under state law could qualify as felonies under the “illicit trafficking” portion of
the aggravated felony definition. The Supreme Court held that they could not:
“conduct treated as a felony by the State that convicted a defendant of committing
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it, but as a misdemeanor under the CSA” is not an aggravated felony under 8
U.S.C. § 1228. Id. at 629.
Lopez required a change in 10th Circuit law. United States v. M artinez-
M acias, 472 F.3d 1216 (10th Cir. 2007). Previously, both the 10th Circuit and
the BIA— deferring to circuit precedent— treated such convictions as aggravated
felonies. United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); In re
Yanez-G arcia, 23 I& N Dec. 390 (BIA 2002). Petitioner argues that under the
revised definition, his offense does not qualify for deportation.
A. Exhaustion
Before w e address the merits of that claim, we must determine w hether M r.
Batrez Gradiz properly exhausted his administrative remedies. Presumably
because both the BIA and this Circuit were clear that the statute in question
qualified as an aggravated felony, M r. Batrez Gradiz did not challenge that
designation at the administrative level, in district court, or in his initial briefs to
this Court. In the wake of Lopez, the parties submitted supplemental briefing, in
which M r. Batrez Gradiz raised the issue for the first time. The Attorney General
argues that our consideration of this issue is barred by a lack of administrative
exhaustion.
Exhaustion under the INA is statutory and therefore mandatory, rather than
prudential. 8 U.S.C. § 1252(d)(1). The Tenth Circuit has not addressed whether
the exhaustion provision contains any exceptions, but the Second Circuit has
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found an exception to the IN A’s exhaustion rule in a similar circumstance.
M arrero Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004). M arrero Pichardo
concerned an alien who was facing deportation for driving under the influence of
a controlled substance. W hile M r. M arrero Pichardo’s case w as pending before
the circuit court, the Second Circuit ruled in a separate case that driving while
intoxicated was not in fact an aggravated felony. Dalton v. Ashcroft, 257 F.3d
200, 208 (2d Cir. 2001). M r. M arrero Pichardo had not appealed the issue to the
BIA or in his original briefing to the Second Circuit. The court considered his
claim anyway, notwithstanding the exhaustion provision of 8 U.S.C. § 1252(d)(1),
noting that “[c]ourts have historically interpreted procedural rules to prevent a
fundamental miscarriage of justice.” M arrero Pichardo, 374 F.3d at 53. The
court determined such an injustice to be in play, noting that “Pichardo’s claim
refers not to a collateral matter, but to one going to the very basis of his
deportation.” Id. at 54.
The First, Fifth, and Seventh Circuits have all also stated or implied that
exceptions to § 1252(d)(1) might exist in extreme cases. Goonsuwan v. Ashcroft,
252 F.3d 383, 389 (5th Cir. 2001) (holding that habeas petitioner’s failure to
exhaust may be excused “when administrative remedies are inadequate” but not
where administrative procedures exist to reopen petitioner’s case) (internal
quotation marks omitted); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (“Even
where statutes impose an exhaustion requirement the Supreme Court has, despite
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the rhetoric of jurisdiction, carved out exceptions.”); Singh v. Reno, 182 F.3d 504,
511 (7th Cir. 1999) (finding that an exception exists to address “certain
constitutional due process claims”).
M oreover, the “miscarriage of justice” standard is the one the Supreme
Court has used in making exceptions to the exhaustion bar in habeas corpus
claims under 28 U.S.C. § 2254, which is similarly statutory. Coleman v.
Thom pson, 501 U.S. 722, 750 (1991). W e find it equally logical to apply that
standard in cases under 8 U.S.C. § 1227.
The standard for a miscarriage of justice is high. “To come within this
very narrow exception, the petitioner must supplement his constitutional claim
with a colorable showing of factual innocence. The inquiry must focus on actual
or factual innocence, as opposed to legal innocence.” Klein v. Neal, 45 F.3d
1395, 1400 (10th Cir. 1995) (internal quotation marks, citations, and brackets
omitted). To establish actual innocence, appellants “must demonstrate that, in
light of all of the evidence, it is more likely than not that no reasonable juror
would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998)
(internal quotations omitted). W e have no jury in deportation cases, so we assess
the evidence as the appropriate fact-finder— in this case, the Department of
Homeland Security— would.
Such an inquiry requires that the record be “assessed for evidentiary
sufficiency on the [relevant] prongs.” United States v. Leopard, 170 F.3d 1013,
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1017 (10th Cir. 1999). See also Johnson v. Pinchak, 392 F.3d 551, 565-66 (3d.
Cir. 2004). In this case, the relevant assessment is whether the crime at issue
was, in fact, an aggravated felony. If it was not, Petitioner’s conduct does not
fulfill the elements necessary for deportation under 8 U.S.C. § 1227, and he is, in
effect, actually innocent. Therefore, if M r. Batrez Gradiz can show that his
conviction was not an aggravated felony, his lack of exhaustion is excused.
B. Aggravated Felony
The written record of Petitioner’s arraignment, which was employed in all
his subsequent state and federal proceedings, refers to Petitioner’s offense as
under W yo. Stat. § 25-7-1031(a)(i). That is evidently a typographical error. No
statute exists by that number. W yoming does have a similarly numbered statute,
§ 35-7-1031(a)(i), which criminalizes the manufacture, delivery, or possession
with intent to manufacture or deliver controlled substances. W yo. Stat. § 35-7-
1031(a)(i). Oddly, however, the designation of M r. Batrez Gradiz’s offense in the
record of his arraignment is not quite the same as § 35-7-1031(a)(i). The record
refers to “Unlawful M anufacture or Delivery or Possession, or Possession W ith
intent to M anufacture or Deliver, a C ontrolled Substance.” R. at 7 (emphasis
added). Thus, the charge described in his arraignment record includes simple
possession, while the statute (corrected for the typographical error) does not.
Although these discrepancies— the error in the statute number and the
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misdescription of the statute— complicate matters, they do not ultimately help M r.
Batrez Gradiz. Any way we analyze his offense, it is an aggravated felony.
If we correct the typographical error in the statute number and assume that
M r. Batrez Gradiz w as charged under § 35-7-1031(a), there is no doubt that his
conviction was an aggravated felony rendering him eligible for deportation.
Section 35-7-1031(a) reads, in pertinent part: “it is unlaw ful for any person to
manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance.” All three offenses chargeable under that
statute— manufacture, delivery, and possession with intent to manufacture or
deliver— are felonies under the Controlled Substances Act, 21 U.S.C. § 841(a)(1),
and are therefore deportable aggravated felonies under 8 U.S.C. §§
1101(a)(43)(B) and 1227(a)(2)(A)(iii).
Alternatively, we might go by the description of his offense in the record of
arraignment: “U nlawful M anufacture or Delivery or Possession, or Possession
W ith intent to M anufacture or Deliver, a Controlled Substance.” This offense, as
described, comprises both simple possession, which is not an aggravated felony,
and manufacture or delivery or possession with intent to manufacture or deliver,
which is. W hen a statute includes crimes that fit under the aggravated felony
definition and those that do not, we must look beyond the face of the statute to
the defendant’s conduct. Taylor v. United States, 495 U.S. 575, 599-602 (1990).
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In the context of determining which prior offenses were “crimes of
violence” for purposes of the Sentencing Guidelines, Taylor instructed that
sentencing courts may not look to any and all evidence to ascertain the
defendant’s conduct, but only to “the charging paper and jury instructions,” to see
if they “actually required the jury to find all the elements of [the aggravated
felony] in order to convict the defendant.” 495 U.S. at 602. Since Taylor, the
Supreme Court and this Circuit have expanded that list of permissible documents
to include the plea agreement and sentencing-court findings. Shepard v. United
States, 544 U.S. 13, 16 (2005) (plea agreement); United States v. Hernandez-
Garduno, 460 F.3d 1287, 1294 (10th Cir. 2006) (sentencing findings). The logic
of these cases pertains equally to the classification of crimes under 8 U.S.C. §
1227, and we adopt it here. That approach follows the path taken by the B IA
itself, M atter of Alcantar, 20 I& N Dec. 801, 812 (BIA 1994), as well as a number
of other circuits, see e.g., Conteh v. Gonzales, 461 F.3d 45, 54 (1st Cir. 2006);
Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004). It also matches the
course that our Circuit suggested but did not formally adopt in Vargas v. Dep’t of
Homeland Security, 451 F.3d 1105, 1107-09 (10th Cir. 2006).
The order deferring imposition of M r. Batrez Gradiz’s sentence, which was
signed by his attorney, is the functional equivalent of a plea agreement. It
stipulates, among other things, that the defendant shall “reimburse the W ashakie
County Sheriff’s Department in the amount of $280.00 for expenses (buy
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monies).” R. at 10. That language makes clear that the defendant’s plea was not
to mere possession, but to actual distribution. “Buy monies” refers to the money
that the agents paid him when he sold them drugs. Accordingly, using the
modified categorical approach, we find that M r. Batrez Gradiz committed an
aggravated felony.
Petitioner counters that the Notice of Intent to Issue a Final Administrative
Removal Order lists the crime as “Possession of a Controlled Substance; to wit
M eth,” and thus that Respondent is precluded from arguing a more serious charge.
R at 1. However, we see no need to interpret the DHS’s notation as a concession,
particularly when, under Tenth Circuit precedent at the time, there was no need
for the Government to distinguish between possession and possession with an
attempt to distribute. It appears instead to be mere shorthand. Subsequent
language in the administrative record make clear the DHS understood that the
defendant had admitted to making a drug purchase.
III.
Accordingly, we hold that M r. Batrez Gradiz was convicted of an
aggravated felony, and we A FFIRM the order of the BIA. W e also GRANT the
petitioner’s motion seeking leave to proceed in forma pauperis on appeal.
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