Francis v. Gonzales
| Decision Date | 27 March 2006 |
| Docket Number | Docket No. 04-2457-AG. |
| Citation | 442 F.3d 131 |
| Parties | Baswell FRANCIS, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Mark T. Kenmore, Buffalo, NY, for Petitioner.
Gregory R. Miller, United States Attorney for the Northern District of Florida (E. Bryan Wilson, Assistant United States Attorney, of counsel), Tallahassee, FL, for Appellant.
Before: McLAUGHLIN and SACK, Circuit Judges, and KOELTL, District Judge.**
The Immigration and Naturalization Service1 instituted removal proceedings2 against petitioner Baswell Francis in 1999, alleging that because he had two Jamaican convictions for possessing marijuana in the early 1980s, Francis had been statutorily inadmissible at the time he obtained his temporary resident status in 1988 and his permanent resident status in 1990. In support of its allegations, the government relied on two pieces of evidence: (1) a colloquy between Francis and an Immigration Judge ("IJ"), which the government construed as Francis's admission of one of the Jamaican convictions; and (2) a faxed photocopy of Francis's "rap sheet" from a Jamaican police department. Because we think that no "rational factfinder" could conclude that this evidence, standing alone, constitutes clear, convincing, and unequivocal evidence that Francis had two "convictions," as that term was defined by applicable law in 1988 and 1990, we grant the petition, vacate the BIA's order and remand for further proceedings.
On November 29, 1988, petitioner Baswell Francis became a lawful temporary resident as a special agricultural worker ("SAW"). See § 210 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1160. The SAW program is unique in two respects. First, it contains a confidentiality provision, INA § 210(b)(6)(A), 8 U.S.C. § 1160(b)(6)(A), under which all information an alien provides in his or her initial application for temporary residence — even false information — can be used only to determine the applicant's eligibility for temporary resident status and only during the two-year period before adjustment to permanent resident status.3 In Francis's case, this two-year period spanned from 1988 to 1990. Because of the SAW program's confidentiality provision, we do not have access to his application and do not know whether Francis disclosed any prior convictions in it.
The second unique feature of the SAW program is that, under INA § 210(a)(2)(B), 8 U.S.C. § 1160(a)(2)(B), the status of an SAW worker is automatically adjusted from lawful temporary resident to lawful permanent resident after two years. Matter of Jimenez-Lopez, Interim Decision No. 3211, 20 I. & N. Dec. 738, 742 (BIA 1993) (citation omitted). On December 1, 1990, Francis was automatically adjusted to permanent resident status under this provision.4
Because Francis thus became a permanent resident, he is afforded heightened procedural protections in any deportation proceedings. "[T]he burden of proof is now on the Service to establish the applicant's inadmissibility, and the full panoply of due process considerations now applies. . . ." Id. at 743 n. 6. The government must also meet a heightened standard of proof by establishing Francis's deportability by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 277, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).
Francis apparently applied for United States citizenship at some point in 1999. (His application is not included in the record; we do not know if it contained any statements concerning past convictions.) It was only after receiving that application that the government initiated deportation proceedings against Francis, alleging that he had been convicted twice in Jamaica for possession of marijuana, once in 1980 and once in 1981.
Under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), "[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable." The government argued that Francis was inadmissible when he received temporary resident status in 1988 and permanent resident status in 1990 because under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), any alien who is convicted of "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible." Because, according to the government, Francis's two convictions rendered him inadmissible under section 212 at the time he became a temporary and permanent resident, he is now deportable under section 237.
Francis appeared at a hearing on the government's charges before an IJ in Buffalo, New York on September 13, 1999. Francis told the IJ that he had contacted a lawyer from the court's list of free legal services. The IJ responded that no lawyer had filed an appearance on his behalf. The IJ then accommodated Francis's concerns by rescheduling the hearing until February 14, 2000, to give Francis additional time to contact a lawyer.
At the February hearing, Francis reported that he had tried again to obtain representation but that the lawyer to whom he had placed telephone calls had never returned them. The IJ responded that "I'm afraid I'm going to have to go forward with your case because it's been pending for a while" and that "I'm going to have to ask that you speak on your own behalf." See Tr. of Removal Hearing, Sept. 13, 1999, at 8.
The following exchange ensued:
Q. . . . They say you were convicted on February 19th, 1980 in Saint James, Jamaica, West Indies of the violation of the crime relating to illicit possession of or trafficking in narcotic drugs or marijuana, to wit: possession of marijuana. Is that true?
A. Convicted. I remember charge but for only one possession of marijuana.
Q. Yes, but were you convicted of it? Did you go to Court?
A. Yes, I go to Court.
Q. The judge say you were guilty?
A. Yes, sir.
Q. Okay. Then it says . . . you were convicted on December 16th, 1981 in Saint James, Jamaica, West Indies of the violation of a crime relating to the illicit possession of or trafficking in narcotic drugs or marijuana, to wit: possession of marijuana. So the next year, a year later, over a year later, you were charged with the same things just about. Is that true?
A. I try to remember that case but I still can't remember about it, I'm trying to say, when was that because I know they charge with possession of marijuana in Jamaica once, so I was trying to remember when was that one.
Q. Well, were you arrested in December of '81? Everybody remembers if they get arrested?
A: Yes, well, I remember —
Q. And I know you remember the first time —
A. Yes, I remember the first —
Q. — in February 1980.
A. — I remember the first time because that was on my birthday —
Q. Okay.
A. — I think.
Q. Well what happened the second time?
A. I don't remember if I was, if it was the same thing, smoking, possession of marijuana, but I can't quite remember that one but I remember the first one.
Q. You mean you can't remember the exact charge?
A. Yes, I can't remember —
Q. Well, do you remember being arrested?
A. Yes, I think I remember being arrested.
Q. Okay. But you don't — did it have something to do with narcotics?
A. Maybe we say marijuana.
Q. Marijuana?
A. Yes.
Q. Okay, it says here that you were in possession of marijuana and, or you were trafficking in it. So —
A. No, I wasn't trafficking no marijuana. I never been trafficking marijuana.
Q. But you did have it on your person, right?
A. No it was a joint.
Q. A joint?
A. Yes.
Q. Okay. All right, so, I'll take that as an admission.
Id. at 10-12. Based on this testimony, the IJ ordered Francis deported.
Francis — now represented by counsel — appealed. The BIA vacated the IJ's order and remanded for further proceedings. The BIA agreed with the IJ that Francis had admitted one conviction but disagreed that he had admitted a second one. The BIA noted that under 8 C.F.R. § 210.3(e)(3)(iii), a waiver may be available if an alien is convicted of a single offense of simple possession of thirty grams or less of marijuana. The BIA therefore remanded for the IJ to determine whether Francis asked for and was granted a waiver at the time he sought temporary resident status.
On remand, the government reported that it had discovered an additional file indicating that, before Francis had entered the country in 1988, he had been ordered excluded during a 1985 proceeding in Baltimore. At the government's suggestion, the IJ placed an order for the file of the 1985 proceedings from the Federal Records Center.
The IJ questioned Francis, and Francis confirmed that he had been previously been ordered excluded in 1985. The IJ asked: See Tr. of Removal Hearing, Aug. 20, 2002, at 16-17. Francis answered: Id. at 17. The IJ adjourned the proceedings until both parties had an opportunity to inspect the file from the 1985 proceedings.
The 1985 records indicated that Francis had previously tried to enter the country with a false birth certificate under the name Leon Williams. The file included an order from the IJ in Baltimore stating that: "You do not appear to me to be clearly and beyond a doubt entitled to enter the United States as you...
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