Saleh v. Gonzales

• Decision Date: 17 July 2007
• Docket Number: Docket No. 05-5909-ag.
• Citation: 495 F.3d 17
• Parties: Yasser Nasser SALEH, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

495 F.3d 17

Yasser Nasser SALEH, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

Docket No. 05-5909-ag.

United States Court of Appeals, Second Circuit.

Argued: April 30, 2007.

Decided: July 17, 2007.

Amended: August 3, 2007.

Eric W. Schultz, Sacks, Kolken & Schultz, Buffalo, NY, for Petitioner.

Shane Cargo, Assistant United States Attorney, (Michael J. Garcia, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, for Respondent.

Before: FEINBERG, SOTOMAYOR, and HALL, Circuit Judges.

FEINBERG, Circuit Judge:

Yasser Nasser Saleh, a lawful permanent resident of the United States, was charged as removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i). The basis of the charge was his conviction in state court of receiving stolen property, which is a removable offense, i.e., a "crime involving moral turpitude" ("CIMT") for which a sentence of one year or longer could have been imposed. In an effort to escape the adverse immigration consequences of that conviction, Saleh thereafter obtained an amendment of the judgment so that he instead stood convicted of petty theft, which is not a removable offense.

In this petition, Saleh seeks review of the decision of the Board of Immigration Appeals ("BIA") affirming decisions of the Immigration Judge ("IJ") (A) rejecting Saleh's argument that he no longer stands convicted of a removable offense and therefore denying his motion to terminate his removal proceedings and (B) finding Saleh removable as charged and denying his application for relief from removal. In re Saleh, No. A41 982 414 (B.I.A. Oct. 4, 2005), aff'g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22, 2004).

In reviewing these decisions, the principal question before us is whether the BIA erred in concluding that Saleh remains "convicted" of a removable offense for federal immigration purposes even though the state court amended its judgment of conviction to effectively expunge his conviction of a removable offense under state law. For the reasons set forth below, we hold that the BIA did not err because the amendment was secured solely to aid Saleh in avoiding immigration consequences and was not based on any procedural or substantive defect in the original conviction. We therefore deny the petition.

I. BACKGROUND

Saleh, a native and citizen of Yemen, was admitted to the United States as a lawful permanent resident in 1990. In 1993, Saleh was convicted in a California state court, following his plea of nolo contendere, of receiving stolen property in violation of section 496(a) of the California Penal Code.¹ The offense carries a maximum sentence of one-year imprisonment, see Cal. Pen.Code § 496(a), although the court imposed a lower sentence.² In July 2001, the Immigration and Naturalization Service ("INS") commenced removal proceedings,³ charging that Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his 1993 crime qualifies as a CIMT, committed within 10 years after the date of admission, for which a sentence of one year or longer could have been imposed.

Subsequently, for the announced purpose of escaping adverse immigration consequences, Saleh moved in California state court for an amendment of the judgment convicting him of receiving stolen property, effective nunc pro tunc, so that he would instead stand convicted of petty theft in violation of section 488 of the California Penal Code. Because this is not a crime for which a sentence of one year or longer could have been imposed, it is not a removable offense. In a declaration accompanying Saleh's motion, his counsel expressly referred to the immigration consequences of Saleh's original conviction, stating that "the alternative disposition of petty theft, which carries a six month maximum sentence would not have the adverse immigration consequences." Moreover, no evidence or argument presented to that court identified any substantive or procedural defects in Saleh's conviction. The California court granted the motion.

Saleh thereafter asked the IJ to terminate the agency's removal proceedings, arguing that petty theft is not a removable offense. The IJ denied the motion, reasoning that, despite the California court's amendment to the judgment of conviction, Saleh remained "convicted" of receiving stolen property, a removable offense for federal immigration purposes, because the amendment was not "based on any showing of innocence or any suggestion that the conviction had been improperly obtained." Instead, the IJ found that the conviction was amended "solely for the purpose of circumventing the immigration laws of the United States."⁴

After the IJ denied Saleh's motion to terminate his removal proceedings and the BIA declined to entertain his interlocutory appeal of that decision, Saleh contested removability and sought relief from removal. He initially filed a Form I-191, a prerequisite to obtaining a waiver of deportation under former section 212(c) of the INA. Subsequently, however, Saleh abandoned his application for 212(c) relief and instead filed a motion to substitute an application for cancellation of removal.⁵ The IJ found Saleh removable and denied his application for cancellation of removal as untimely.

The BIA adopted and affirmed the IJ's decision and dismissed the appeal. Relying on its prior decision in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), the BIA agreed with the IJ that Saleh remained "convicted" of a removable offense for federal immigration purposes because the amendment of the judgment of conviction was not based on "any substantive or procedural defect in the underlying criminal proceedings," and Saleh was therefore removable. Saleh filed a timely petition for review.

II. ANALYSIS

In his petition, Saleh argues that the BIA erred in finding him removable and in denying his application for cancellation of removal. In support, he argues principally that (A) the BIA's interpretation of the INA, under which he remains convicted of a removable offense, (1) is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and (2) violates 28 U.S.C. § 1738, which obliges federal courts to give full faith and credit to state acts, records, and judicial proceedings; and (B) the BIA erroneously concluded that he was ineligible for cancellation of removal. We reject each of his arguments.

A. Did the BIA err in concluding that Saleh remains convicted of a removable offense for federal immigration purposes?

1. Is the BIA's interpretation of the INA at issue in this case entitled to deference under Chevron?

The BIA determined that Saleh was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), which makes removable any alien who "(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status . . .) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed." The BIA properly concluded that Saleh's original conviction for receiving stolen property, in violation of Cal. Pen.Code § 496(a), satisfies these requirements. See Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000). Although Saleh thus stood convicted of a removable offense under state law at one time, he subsequently secured an amendment of the State's judgment in an effort to avoid adverse immigration consequences and not because of any procedural or substantive defect in the original conviction. Therefore, the issue before us is whether, under these circumstances, Saleh remains "convicted" of a removable offense for federal immigration purposes, viz. within the meaning of 8 U.S.C. § 1227(a)(2)(A)(i) and the INA's definition of "conviction," 8 U.S.C. § 1101(a)(48)(A).⁶

This is a question of federal statutory interpretation. We have previously observed that "[w]hether one has been `convicted' within the language of [federal] statutes is necessarily . . . a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State." United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (alterations in original, citation omitted); cf. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119-20, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (holding that in "the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law" (alterations in original, citation omitted)).

We review the BIA's interpretation of the INA under the familiar two-step analysis set forth in Chevron, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). First, we determine whether the provision in question is ambiguous; "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute," and thus entitled to deference. Id. at 843, 104 S.Ct. 2778.

Turning to the first step of this analysis, we conclude that Congress' intent on the treatment of vacated or amended convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous. Saleh was deemed removable because, inter alia, he is an alien who "is convicted of a crime involving moral turpitude," 8 U.S.C. § 1227(a)(2)(A)(i), and conviction is defined, in pertinent part, as "a formal judgment of guilt of the alien...