Centurion v. Holder

• Decision Date: 17 June 2014
• Docket Number: No. 11–2997–ag.,11–2997–ag.
• Citation: 755 F.3d 115
• Parties: Charles William CENTURION, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

755 F.3d 115

Charles William CENTURION, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–2997–ag.

United States Court of Appeals, Second Circuit.

Argued: Sept. 13, 2013.

Decided: June 17, 2014.

Alan Michael Strauss (Edwin Acosta–Diaz, on the brief), New York, NY, for Petitioner.

Sabatino F. Leo, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: KATZMANN, Chief Judge, JACOBS and CARNEY, Circuit Judges.

DENNIS JACOBS, Circuit Judge:

Charles William Centurion petitions for review of a 2011 order of the Board of Immigration Appeals (“BIA”) affirming a 2009 decision of Immigration Judge (“IJ”) Brigitte Laforest, which pretermitted his application for cancellation of removal under § 240A of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a), and for a waiver under the former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). Centurion argues on appeal (1) that an anomaly in the record prevents the Government from showing by clear and convincing evidence that he was convicted of an offense related to a controlled substance; and (2) that, in light of the Supreme Court's decision in Vartelas v. Holder, ––– U.S. ––––, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), the agency gave impermissible retroactive effect to a statute that would render him ineligible for discretionaryrelief under § 212(c).¹ For the following reasons, we dismiss Centurion's petition for review.

I

Centurion, a native and citizen of Peru, became a lawful permanent resident of the United States in 1989. In 1990, Centurion was arrested in Texas and charged with conspiracy to possess cocaine in an amount exceeding four hundred grams. He posted bail and fled Texas.

In 2005, Centurion was arrested in Puerto Rico on the outstanding Texas warrant. On his return to Dallas County, the district attorney moved to reduce the offense charged in the indictment to the lesser included offense of “attempted possession of [a] controlled substance under 1 gram.” State v. Centurion, No. F–91–01232–U, Motion to Reduce Offense to Lesser and Included Misdemeanor, 291st District Court, Dallas County, Texas. Centurion joined in the motion and indicated that he would plead guilty. Id.

On April 10, 2007, pursuant to a deferred prosecution agreement, Centurion pled nolo contendere to “CONSPIRACY TO POSSESS A CONTROLLED SUBSTANCE TO WIT: COCAINE,” in violation of Texas Health & Safety Code § 481.115. See id., Order of Deferred Adjudication (Apr. 10, 2007).

As Centurion was attempting to enter the United States from the Dominican Republic on September 25, 2007, he was stopped by Customs Officers of the Department of Homeland Security. On January 18, 2008, he was placed in removal proceedings with the filing and service of a Notice to Appear (the “Notice”) charging him with inadmissibility as an alien convicted of a controlled substance violation, under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).

In May 2009, the IJ found Centurion removable as charged and pretermitted his application for a discretionary waiver of admissibility pursuant to INA § 212(c). The BIA affirmed, concluding, as did the IJ, (1) that Centurion's deferred adjudication for the offense of conspiracy to possess cocaine constituted a conviction for a controlled substance offense, and (2) that Centurion was ineligible for § 212(c) relief because his 2007 plea followed the repeal of that dispensation.

On appeal, Centurion presents two arguments bearing upon our jurisdiction: that the Government's evidence did not prove he was convicted of an offense relating to a controlled substance; and that the agency erred in finding him statutorily ineligible for § 212(c) relief. No court has jurisdiction to review the final order of removal against an alien who was convicted of a controlled substance offense. 8 U.S.C. § 1252(a)(2)(C). But we retain jurisdiction to consider whether a conviction falls within that statutory prohibition, see Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004), and to review constitutional claims and questions of law, including statutory eligibility for relief under former INA § 212(c). 8 U.S.C. § 1252(a)(2)(D); Garcia–Padron v. Holder, 558 F.3d 196, 199 (2d Cir.2009).

“Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ's decision, we review the decision of the IJ as supplemented by the BIA.” Jalloh v. Gonzales, 498 F.3d 148, 150–51 (2d Cir.2007) (per curiam) (quoting Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006)). Questions of law and the agency's application of law to fact are reviewed de novo. Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008).

We conclude that we lack jurisdiction and dismiss the petition.

II

“[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements 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.” 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Centurion argues that the Government has proffered insufficient evidence to sustain its burden of proof that he was convicted of “a violation ... relating to a controlled substance.” Id. Since Centurion is a lawful permanent resident, the Government “bears the burden of proof, which it must meet by adducing ‘clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.’ ” Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir.2006) (citations omitted). Consequently, we review the agency's factual findings here under a “more demanding” variation of the “substantial evidence” standard codified at 8 U.S.C. § 1252(b)(4)(B). Id. “Applying this standard, we may grant [Centurion's] petition only if we ‘find that any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence....’ ” Singh v. U.S. Dep't of Homeland Sec., 526 F.3d 72, 78 (2d Cir.2008) (quoting Francis, 442 F.3d at 138–39).

As proof of conviction, the agency may properly rely on:

(i) An official record of judgment and conviction. (ii) An official record of plea, verdict, and sentence.

...

(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.

8 U.S.C. § 1229a(c)(3)(B). “Any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.” 8 C.F.R. § 1003.41(d).

The record evidence clearly and convincingly demonstrates that Centurion was convicted of a controlled substance violation. The True Bill of Indictment and the Order of Deferred Adjudication (as well as the Order Dismissing Deferred Proceedings) reflect that the offense charged and the offense of conviction involved possession (attempted or actual) of “a controlled substance, to wit: cocaine.” See, e.g., State v. Centurion, No. F–91–01232–U, Order of Deferred Adjudication, 291st District Court, Dallas County, Texas (Apr. 10, 2007) (plea of nolo contendere to “CONSPIRACY TO POSSESS A CONTROLLED SUBSTANCE TO WIT: COCAINE,” in violation of Texas Health & Safety Code § 481.115); id., Order Dismissing Deferred Proceedings (Oct. 25, 2007).

Centurion asserts that an internal inconsistency in the Order of Deferred Adjudication is fatal to the Government's case. He reasons as follows: the Order of Deferred Adjudication states that the statute of conviction is Texas Health and Safety Code § 481.115; all offenses listed under § 481.115 are felonies; the Order of Deferred Adjudication also states that the degree of offense was a Class B misdemeanor;but possession of cocaine under Texas law is never a misdemeanor; hence, “it is impossible to determine whether Mr. Centurion pleaded nolo contendere to possession of cocaine or to a Class B misdemeanor.” Pet'r's Br. 14; see also id. at 15 (“According to the evidence, therefore, Mr. Centurion both did and did not plead nolo contendere to possession of cocaine, a logical and legal impossibility.”).

Centurion's resourceful argument is unavailing. The standard is whether the record would “compel” “any rational factfinder” to conclude that the Government's burden of proof was not satisfied. See Francis, 442 F.3d at 138. Notwithstanding the single reference in the record to a Class B misdemeanor, there can be no serious dispute that Centurion's conviction related to a controlled substance. When Centurion joined the district attorney's motion to reduce Centurion's offense to the lesser included offense of “attempted possession of a controlled substance under 1 gram,” Centurion averred that he was guilty of that offense, stated that he would enter a plea of guilty to that charge when the time came, and asked the district court to accept his plea of guilty. See State v. Centurion, No. F–91–01232–U, Motion to Reduce Offense to Lesser and Included Misdemeanor, 291st District Court, Dallas County, Texas. Just as clearly, the Order Dismissing Deferred Proceedings specified the offense of conviction as “CONSPIRACY TO POSSESS A CONTROLLED SUBSTANCE, TO WIT: COCAINE.” Id., Order Dismissing Deferred Proceedings (Oct. 25, 2007).

From beginning to end, indictment to dismissal, Centurion's criminal case was about the unlawful possession of a controlled substance. See Durant v. INS, 393 F.3d 113, 115 (2d Cir.2004) (“Durant's 1991 and 1995 convictions for cocaine possession constitute violations of a law relating to a controlled substance.”). A single confusing reference to a Class B misdemeanor does not compel a different conclusion. See8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing that inadmissibility may be found, inter alia, where an alien merely “admits having committed, or ... admits committing acts which constitute the essential...