Ali v. U.S. Atty. Gen.

• Decision Date: 22 March 2006
• Docket Number: No. 05-11258.,05-11258.
• Citation: 443 F.3d 804
• Parties: Mohammed Salim ALI, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

443 F.3d 804

Mohammed Salim ALI, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 05-11258.

United States Court of Appeals, Eleventh Circuit.

March 22, 2006.

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Craig A. Gillen, Gillen, Parker & Withers, LLC, Atlanta, GA, Timothy W. Boyd, Miller, Hamilton, Snider & Odom, LLC, Atlanta, GA, for Ali.

Ernesto H. Molina, Jr., David V. Bernal, Anthony Cardozo Payne, Jamie M. Dowd, U.S. Dept. of Justice, OIL-Civ. Div., Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Mohammed Salim Ali, a citizen and native of Pakistan, petitions for review of the Board of Immigration Appeals's ("BIA") order denying his motion to reopen removal proceedings. At his removal hearing, Ali conceded removability on several grounds, including his conviction in Georgia state court for child molestation, but sought relief under the Convention Against Torture ("CAT"). The immigration judge ("IJ") denied withholding of removal under CAT, and the BIA affirmed. Thereafter, Ali's extraordinary motion for a new trial on his child molestation offense was granted by a Georgia state court, as was the State of Georgia's motion to nolle prosse charges. Ali then filed a motion with the BIA to reopen his removal proceedings, arguing that he no longer had a "conviction" for purposes of the Immigration and Nationality Act ("INA"). In addition, Ali produced an uncertified copy of a pardon that he had purportedly received from the State. The BIA denied Ali's motion to reopen, and he now seeks review in this Court. We deny Ali's petition.

I. BACKGROUND

Ali entered the United States in 1991 as a nonimmigrant visitor. In October of 1993, he pled guilty in the Superior Court of Clayton County, Georgia, to two counts of child molestation and was sentenced to five years' probation on each count, to be served concurrently. This sentence was imposed under Georgia's First Offender Act, which allows a first time felony offender to be placed on probation (or sentenced to confinement) and serve out that probation or confinement without receiving an adjudication of guilt. See O.C.G.A. § 42-8-60 et seq. In 1996, Ali married a lawful permanent resident, by whom he now has two U.S. citizen daughters. Ali adjusted of his status to that of a lawful permanent resident in 2000. His I-485 application for permanent residence responded "NO" to the question of whether he had been "arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations."

In May of 2002, the Immigration and Naturalization Service ("INS") issued Ali a Notice to Appear ("NTA") charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, namely, a crime related to the sexual abuse of a minor.¹ In September of 2002, the INS lodged additional charges against Ali, alleging that he was removable under 8 U.S.C. § 1227(a)(1)(A), as an alien who was inadmissible at the time of the adjustment of his status because (1) he had been convicted of a crime involving moral turpitude, and (2) he had sought to procure an immigration benefit by willfully misrepresenting a material fact. Ali appeared through counsel at the removal hearing and conceded removability on the charge made against him in the NTA, as well as the additional charges described above. However, he applied for withholding of removal under the Convention Against Torture ("CAT"), because he believed he would be jailed and tortured upon his return to Pakistan (in part because of his child molestation offense).

After considering testimony and evidence in a hearing on Ali's application for withholding of removal, the IJ denied relief and ordered Ali removed to Pakistan. Ali appealed to the BIA, which dismissed his appeal in September of 2003. The BIA found that Ali was convicted of a particularly serious crime (child molestation), that Ali admitted as much, and that Ali was therefore ineligible for withholding of removal under CAT. Although the BIA found that Ali was potentially eligible for deferral of removal, the BIA determined that Ali had not established that it was more likely than not that he would be tortured if removed to Pakistan. Ali did not petition for review from the BIA's decision.

On October 29, 2003, the Superior Court of Clayton County, Georgia, granted Ali's extraordinary motion for a new trial on his child molestation offense. On November 11, 2003, the Superior Court granted the district attorney's motion to nolle prosse the child molestation charges. Several days later, Ali filed a motion with the BIA to reopen and terminate removal proceedings. Due to the nolle prosse, Ali claimed, he was no longer removable as an aggravated felon or as one inadmissible at the time of adjustment. The BIA denied the motion, finding that Ali had failed to establish a basis for reopening proceedings. Citing its decision In re Pickering, 23 I. & N. Dec. 621, 624, 2003 WL 21358480 (BIA 2003), the BIA explained that a respondent no longer has a "conviction" within the meaning of 8 U.S.C. § 1101(a)(48)(A) if a court vacates the conviction based on a defect in the underlying proceedings, but not if the conviction is vacated for reasons unrelated to the merits of the underlying criminal proceedings. The documentation provided by Ali, the BIA found, was insufficient to establish that he was the victim of a substantive or procedural defect. Although Ali also argued that he had been pardoned by Georgia's Board of Pardons and Paroles on February 13, 2004, the BIA found that the uncertified photocopy of his pardon was "not sufficiently reliable to meet the respondent's heavy evidentiary burden to reopen proceedings." Finally, the BIA stated that even if it did accept Ali's pardon, the pardon would not cure his removability with respect to the charges pertaining to his adjustment of status in 2000.

On appeal, Ali contends that the BIA erred in its consideration of his "conviction" and "pardon," erred in placing the burden of proof upon him, erred in concluding that he was removable for willfully misrepresenting a material fact, deprived him of due process, and issued an impermissibly vague order. The Government defends the BIA's decision and further asserts that we lack jurisdiction over Ali's appeal.

II. STANDARD OF REVIEW

We review the BIA's denial of a motion to reopen for abuse of discretion. Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1340 (11th Cir.2003) (per curiam). "Our review is limited to determining whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious." Abdi v. U.S. Att'y Gen., 430 F.3d 1148, 1149 (11th Cir.2005) (per curiam) (internal quotes and citation omitted). Insofar as Ali claims that the BIA's actions deprived him of due process, however, we review constitutional claims de novo. Lonyem, 352 F.3d at 1341. Generally, "[m]otions to reopen are disfavored, especially in a removal proceeding, `where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.'" Abdi, 430 F.3d at 1149 (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992)). An alien may file one motion to reopen removal proceedings, which motion "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); Abdi, 430 F.3d at 1149. "A motion to reopen proceedings shall not be granted unless it appears to the [BIA] 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).

We review our subject matter jurisdiction de novo. Ortega v. U.S. Att'y Gen., 416 F.3d 1348, 1350 (11th Cir.2005) (per curiam).

III. DISCUSSION

A. Subject Matter Jurisdiction

The Government contends that Ali is an alien convicted of an aggravated felony, and therefore within the scope of 8 U.S.C. § 1252(a)(2)(C), which provides that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section. . . 1227(a)(2)(A)(iii) . . . ."² Until recently, when a final order of removal was subject to § 1252(a)(2)(C), our review was limited to "determining whether the petitioner is (1) an alien (2) who was removable (3) for committing a crime enumerated in one of the statutes listed in section 1252(a)(2)[(C)]." Balogun v. U.S. Att'y Gen., 425 F.3d 1356, 1359 (11th Cir.2005). If those conditions were met, and there were no constitutional defects in the alien's removal proceedings, we would have to dismiss the petition for lack of jurisdiction. Id. However, the REAL ID Act of 2005, which amended § 1252, "ha[d] the effect of restoring some of our jurisdiction to decide the 'questions of law' an alien raises in a petition to review a final order of removal." Id.³ These amendments are "retroactively applicable to all pending proceedings regardless of the date of the final administrative order." Id. at 1360. Thus, in addition to the review otherwise available under § 1252(a)(2)(C), we have jurisdiction to review "constitutional claims" or "questions of law" raised by Ali. See 8 U.S.C. § 1252(a)(2)(D).

B. Motion to Reopen

1. First Offender Act

Ali contends that his plea under Georgia's First Offender Act did not constitute a "conviction" for purposes of the INA, because the plea was not accompanied by an actual adjudication of guilt.⁴ The INA defines the term "conviction" as follows:

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...