Rumierz v. Gonzales

• Decision Date: 03 August 2006
• Docket Number: No. 05-1895.,05-1895.
• Citation: 456 F.3d 31
• Parties: Antoni A. RUMIERZ, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

456 F.3d 31

Antoni A. RUMIERZ, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-1895.

United States Court of Appeals, First Circuit.

Heard May 4, 2006.

Decided August 3, 2006.

Regis Fernandez for petitioner.

William C. Minick, Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, and Linda S. Werney, Assistant Director, were on brief, for respondent.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

The BIA held here that an alien, who is already under a final order of removal for committing crimes of moral turpitude, bears the burden of proving that he has met the standards under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), for vacating an order of removal presented in a belated motion and premised on the post-final-order-of-removal vacating of the underlying state court conviction. In the circumstances of this case, the BIA held that the alien had not met that burden. Because we cannot say that either the facts before it or the law compelled the BIA to reach the opposite result, we affirm the BIA and deny the petition for review.

I.

Antoni A. Rumierz, a Polish citizen who entered this country as an immigrant in 1980, was ordered removed from the United States by the BIA on August 18, 2000, on the basis that he had been convicted twice in state courts of receiving stolen property, which are crimes of moral turpitude for federal immigration purposes. See 8 U.S.C. § 1227(a)(2)(A)(ii).

Before that, in 1999, the BIA had found Rumierz removable on the same basis, but had remanded to the Immigration Judge (IJ) to determine whether Rumierz nonetheless should be granted a waiver of relief under former § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994) (repealed 1996). The IJ denied § 212(c) relief as a matter of discretion on December 10, 1999; this decision was affirmed in the BIA's August 2000 order. Deportation proceedings had initially commenced in March 1994.

In its August 2000 order, the BIA expressly found that the government had met its burden to show that the two prior convictions were sufficient to establish Rumierz's deportability; it also noted that the two convictions had not been vacated. There is no doubt the criminal convictions, one of which was a January 1994 Vermont conviction, were qualifying crimes of moral turpitude. Rumierz did not petition for review of the BIA's August 2000 order, nor did he file a motion with the BIA to reopen.

In February 2001, Rumierz filed a pro se writ of habeas corpus, which was heard in the U.S. District Court for the District of New Jersey.¹ No doubt he did this because the ninety-day filing deadline to bring new evidence to the BIA under either a motion to reopen or a motion to reconsider had long since expired. 8 C.F.R. § 3.2(c)(2) (1999) (recodified at 8 C.F.R. § 1003.2(c)(2)).

Thereafter, in 2002, two years after the BIA had entered its final order of removal and the time for reopening had passed, Rumierz sought to vacate the January 1994 predicate conviction in Vermont. On application by Rumierz, a Vermont court entered, on August 23, 2002, an "Agreement and Stipulation," which struck the conviction for possession of stolen property and amended it to negligent operation of a motor vehicle. Negligent operation of a motor vehicle is not a crime of moral turpitude under the immigration laws. Rumierz brought the vacating of the conviction to the attention of the district court. The government responded with an affidavit from a Vermont Deputy State's Attorney, which stated that Rumierz had petitioned for post-conviction relief on the basis of allegations of "certain errors in his earlier conviction." The affidavit also stated that "[t]he merits of Petitioner's claim were not addressed or adjudicated in connection with the `Agreement and Stipulation.'"

The district court on September 25, 2003, at Rumierz's request, directed the BIA "to reconsider its [August 18, 2000] decision in light of subsequent developments, including the Agreement and Stipulation, dated August 23, 2002 from the Superior Court, Windsor County, Vermont." The district court order did not itself vacate the order of removal or order the BIA either directly or indirectly to vacate the order of removal. It also did not hold that Rumierz had met the standard used by the BIA to determine whether to reopen proceedings.

The BIA, as instructed, reconsidered based on the record sent to it by the district court, and denied relief, saying:

Upon further consideration, the respondent's appeal will again be dismissed. The August 23, 2002, "Agreement and Stipulation" from the Vermont court states only that [Rumierz's] conviction for possession of stolen property "shall be stricken and amended to negligent operation of a motor vehicle." There is nothing in the record to indicate that this conviction was stricken based on any defect in the original conviction. An affidavit from a Vermont Deputy State's Attorney states that, "the merits of Petitioner's claim were not addressed or adjudicated" in connection with the Agreement and Stipulation.

In [In re Pickering], we held that where a court order quashing a conviction, and the documents supporting the request to quash, did not identify a basis for questioning the integrity of the underlying criminal proceeding or conviction, the conviction remained valid for immigration purposes. In that case, the alien's affidavit stated that the conviction was a bar to his lawful permanent resident status in the United States.

We find that, particularly this late in the proceedings (where the conviction in question was entered in January of 1994, and where deportation proceedings began in March of 1994), [Rumierz] must present evidence to show that the Vermont court's action in striking the stolen property conviction was tied to a defect in that conviction, rather than related in part to immigration proceedings. Here, there is no representation in the record regarding any kind of defect in the merits of the respondent's Vermont conviction, and, as noted above, the state's attorney has stated that in striking the conviction, the judge did not address or adjudicate the merits of [Rumierz's] claim. Under these circumstances, the respondent has not shown that the Vermont conviction for possession of stolen property is not still valid for immigration purposes. We therefore find that the respondent remains deportable as charged.

The BIA order had two major components. First, it utilized the substantive standard the BIA had established in In re Pickering, 23 I. & N. Dec. 621, under which a vacated conviction is no longer a "conviction" within the meaning of the immigration laws only "if a court with jurisdiction vacates [the] conviction based on a defect in the underlying criminal proceedings."² Id. at 624. Under Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir.2000), which pre-dates and is independent of Pickering, the rule is the same:

The emphasis that Congress placed on the original admission of guilt plainly indicates that a subsequent dismissal of charges, based solely on rehabilitative goals and not on the merits of the charge or on a defect in the underlying criminal proceedings, does not vitiate that original admission.

Id. at 306. Second, the BIA held in the circumstances of this case the alien bore the burden of demonstrating that the striking of the state conviction "was tied to a defect in that conviction."

Thereafter, Rumierz renewed his habeas petition in the U.S. District Court in New Jersey. The case was transferred to this court on petition for review under section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 302, 311 (codified at 8 U.S.C. § 1252 note).

II.

Rumierz makes four arguments attacking the BIA's conclusions. We quote from his brief:

First, the BIA incorrectly placed the burden of proving deportability on Mr. Rumierz and not on the government where he has been charged with deportability. Second, the stipulated order is entitled to full faith and credit by the BIA without regard to the Vermont Court's reasons for effecting the modification or reduction.³ Third, even if the BIA can look behind the stipulated order, the government has not met its burden of proving deportability by clear and convincing evidence or that Mr. Rumierz's case runs afoul of [In re Pickering] in that no reliable evidence has been submitted showing that the criminal conviction was vacated solely due to immigration or rehabilitative reasons. Finally, as a matter of procedural due process the BIA should have terminated proceedings with prejudice after one remand to amend the [order to show cause]. (citations omitted).

A. Burden of Demonstrating Predicate Conviction

The initial question presented by Rumierz's arguments is whether the BIA's allocation of the burden on the alien, in these circumstances, to demonstrate that the Pickering standard has been met is either contrary to the relevant statute or an impermissible construction of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The odd procedural posture in which this case came to the BIA—through a district court order that the BIA reconsider in light of the vacated conviction — makes no difference to the standard of review we use to determine whether we can reverse the choice of the BIA to place the burden on the petitioner on these facts. Nor does it make a difference to our standard of review of the BIA's ruling that Rumierz had not met his burden.

Rumierz argues that the BIA's allocation of burdens is inconsistent with the statute. He says that under 8 U.S.C. §§ 1101(a)(48)(A) and 1229a(c)(3)(A), the government must always bear the burden of proof on showing a conviction of a crime of moral turpitude, regardless of whether...