Adefemi v. Ashcroft

• Decision Date: 28 September 2004
• Docket Number: No. 00-15783.,00-15783.
• Citation: 386 F.3d 1022
• Parties: Albert ADEFEMI, Petitioner-Appellant, v. John ASHCROFT, as Attorney General of U.S., Ms. Rosemary Melville, as the District Director for INS, United States Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

386 F.3d 1022

Albert ADEFEMI, Petitioner-Appellant, v. John ASHCROFT, as Attorney General of U.S., Ms. Rosemary Melville, as the District Director for INS, United States Immigration and Naturalization Service, Respondents-Appellees.

No. 00-15783.

United States Court of Appeals, Eleventh Circuit.

September 28, 2004.

COPYRIGHT MATERIAL OMITTED

Michael G. Smith (Court-Appointed), Fort Lauderdale, FL, for Petitioner-Appellant.

Daniel Meron, Regina Byrd, Ernesto H. Molina, Jr., David V. Bernal, U.S. Dept. of Justice/Civ. Div./OIL, Washington, DC, Edward P. Lazarus, William A. Norris, Akin, Gump, Strauss, Hauer & Feld, LLP, Los Angeles, CA, for Respondents-Appellees.

Petition for Review of an Order of the Board of Immigration Appeals.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and KRAVITCH^*, Circuit Judges.

KRAVITCH, Circuit Judge:

Albert Adefemi, a citizen of Nigeria, petitioned this court for review of a decision by the Board of Immigration Appeals ("BIA"), challenging its determination that Adefemi could be deported on the basis of a firearms offense.¹ The main issue on appeal is whether the Immigration and Naturalization Service ("INS") presented sufficient evidence for the BIA to conclude that the INS demonstrated Adefemi's conviction of a firearms offense by clear and convincing evidence.² Reviewing the BIA's decision under the highly deferential "substantial evidence" standard, we hold that there was sufficient evidence in the record for the BIA to find that the INS met its burden and affirm.

I. Background

The facts of this case are straight forward. Adefemi entered the United States without inspection in December 1977. He became a permanent resident in 1989. On December 1, 1993, the INS served Adefemi with an order to show cause why he should not be deported, alleging that he was deportable under the Immigration and Nationality Act ("INA") § 241(a)(2)(A)(ii) based on crimes constituting moral turpitude, i.e. two theft convictions.³ An immigration judge ("IJ") found that Adefemi was deportable and that he was ineligible for relief under INA § 212(c).⁴ Adefemi appealed the IJ's decision to the BIA, which determined that Adefemi was ineligible for § 212(c) relief based on the newly enacted Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The BIA, however, remanded the case to the IJ to permit Adefemi to contest his deportability because he had conceded that issue in his appeal to the BIA.

On remand, the INS added another charge of deportability, alleging that Adefemi's theft convictions constituted aggravated felonies under INA § 241(a)(2)(A)(iii) ("first additional charge").⁵ Adefemi, however, denied that he was deportable based on the two theft convictions because those convictions had been expunged under a state first-offender statute. The IJ rejected Adefemi's argument and held that Adefemi was deportable on both the original charge and on the first additional charge. The BIA affirmed the IJ's decision on deportability, but again remanded to determine whether Adefemi could apply for § 212(c) relief based on recent decisions of this court. During a hearing on remand, Adefemi acknowledged several other convictions and arrests, including the circumstances surrounding Georgia Citation Number 0129, under which Adefemi received a citation for a weapons violation.⁶ As a result of this testimony, the INS added a third charge of deportability under INA § 241(a)(2)(c) ("second additional charge").⁷

Although Adefemi admitted that he had been convicted of carrying a concealed weapon and that he had a gun in his car at the time of arrest, he challenged whether the government established that he had been convicted of carrying a concealed firearm by clear and convincing evidence. In order to satisfy its burden, the INS introduced into evidence a certified record of conviction from the City Court of Atlanta. Adefemi contended that the document was ambiguous because it failed to make clear, among other things, his plea, the disposition of the charge, and the type of weapon involved.⁸ In essence, Adefemi argued that the citation did not establish his conviction by clear and convincing evidence. The IJ rejected his arguments, finding that the document was clear and convincing evidence of a firearms conviction and, therefore, held that Adefemi was deportable based on that offense. In addition, the IJ ruled that Adefemi was ineligible for § 212(c) relief because such relief is not available for a firearms conviction. Adefemi appealed the IJ's decision, arguing that the evidence was insufficient. The BIA found that the City Court of Atlanta document was clear and convincing evidence of a firearms offense and affirmed the IJ's decision. Adefemi appealed the BIA's decision to this court.

II. Standard of Review

This court reviews administrative fact findings under the highly deferential substantial evidence test. Farquharson v. United States Attorney Gen., 246 F.3d 1317, 1320 (11th Cir.2001); Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir. 1997). Under the substantial evidence test, we view the record evidence in the light most favorable to the agency's decision and draw all reasonable inferences in favor of that decision.

We "must affirm the BIA's decision if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quoting Lorisme, 129 F.3d at 1444-45). Thus, we do not engage in a de novo review of factual findings by the BIA. Similarly, we cannot find, or consider, facts not raised in the administrative forum, nor can we "`reweigh the evidence from scratch.'" Mazariegos v. United States Attorney Gen., 241 F.3d 1320, 1323 (11th Cir.2001) (quoting Lorisme, 129 F.3d at 1444-45); see also Najjar, 257 F.3d at 1278 ("Courts of appeal sit as reviewing bodies to engage in highly deferential review of BIA and IJ determinations.... Commensurate with this role, we cannot engage in fact-finding on appeal, nor may we weigh evidence that was not previously considered below."). In sum, findings of fact made by administrative agencies, such as the BIA, may be reversed by this court only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings. Farquharson, 246 F.3d at 1320 ("To reverse a factual finding by the BIA, this Court must find not only that the evidence supports a contrary conclusion, but that it compels one."); see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. . . ."); Kenyeres v. Ashcroft, 538 U.S. 1301, 123 S.Ct. 1386, 1388, 155 L.Ed.2d 301 (2003) ("A reviewing court must uphold an administrative determination in an immigration case unless the evidence compels a conclusion to the contrary.").

We apply the substantial evidence test even when, as in this case, the government is required to prove its case by clear and convincing evidence in the administrative forum.⁹ In other words, the fact that the INS was required to prove Adefemi's deportability by clear and convincing evidence in the BIA does not make our review of the BIA's decision more stringent.¹⁰

PAGE CONTAINED FOOTNOTES

Under the substantial evidence standard, we cannot look at the evidence presented to the BIA to determine if interpretations of the evidence other than that made by the BIA are possible. Rather, we review the evidence that was presented to determine if the findings made by the BIA were unreasonable. See Najjar, 257 F.3d at 1283-84, Mazariegos, 241 F.3d at 1324. To that end, our inquiry is highly deferential and we consider only "whether there is substantial evidence for the findings made by the BIA, not whether there is substantial evidence for some other finding that could have been, but was not, made." Mazariegos, 241 F.3d at 1324. That is, even if the evidence could support multiple conclusions, we must affirm the agency's decision unless there is no reasonable basis for that decision. See United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.2004) (per curiam).

III. Discussion

The BIA determined that the INS presented clear and convincing evidence that Adefemi was deportable as a result of a firearms conviction in 1991. Our task on appeal, therefore, is to decide if there is substantial evidence in the record to support the BIA's determination.

The BIA and the IJ relied primarily, if not exclusively, on the City Court of Atlanta document to determine that Adefemi was convicted of a firearms offense. The front of that document contains charges for carrying a concealed weapon in violation of Georgia Code Section 16-11-126. That section, in turn, prohibits a person from carrying several listed concealed weapons, including both firearms and non-firearms. Ga.Code Ann. § 16-11-126. As such, the INS was required to prove that the crime for which Adefemi was convicted was, in fact, a firearms offense and not some other offense. E.g., Pichardo-Sufren, 21 I. & N. Dec. 330, 1996 WL 230227 (B.I.A.1996). The document contains only one charge — that Adefemi violated Ga. Code Ann. § 16-11-126. In the "remarks" section immediately following the charge, the arresting officer wrote "driver had a 22 cal RG10 in console between seats." No other weapon is listed on the document. Adefemi has not contended, and could not seriously contend, that a .22 caliber RG10 is not a firearm. Similarly, Adefemi has not contended that carrying such a weapon in violation of § 16-11-126 is not a firearms offense under 8 U.S.C. § 1227(a)(2)(C). Thus, it was not unreasonable for the BIA to find that the front side of the City Court of Atlanta document established that Adefemi was charged with a firearms offense.

Next, we address whether it...