Danso v. Gonzales
| Decision Date | 15 June 2007 |
| Docket Number | No. 05-60919.,05-60919. |
| Citation | 489 F.3d 709 |
| Parties | Marty DANSO, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Saul Greenstein, Thomas Ward Hussey, Dir., Linda Susan Wendtland, John Clifford Cunningham, Shelley R. Goad, Civ. Div., U.S. Dept. of Justice, OIL, Washington, DC, Anne M. Estrada, U.S. INS, Dallas, TX, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before KING, WIENER, and OWEN, Circuit Judges.
Petitioner Marty Danso seeks review of an order of the Board of Immigration Appeals ("BIA") adopting and affirming the decision of an immigration judge ("IJ") that denied Danso's requests for cancellation of removal and adjustment of status, and ordered him removed from the United States. We affirm.
Danso is a citizen of Ghana. In 1982, he was convicted in England of a crime involving a controlled substance and sentenced to twelve months of imprisonment.1 Two years later, Danso entered the United States without inspection. After leaving briefly in 1989, he returned, applied for admission, and was paroled into the United States for a period of one year.
In 2002, Danso received a Notice to Appear, charging him with removability as (1) an alien who has been convicted of an offense involving a controlled substance,2 and (2) a "trafficker" of controlled substances.3 Danso then filed an immigrant visa petition with the United States Citizenship and Immigration Services ("USCIS") and an application with the IJ for cancellation of removal with adjustment of status. Danso was later charged with removability as an alien not in possession of a valid immigrant visa.4
At a preliminary hearing before an IJ, Danso admitted his drug-related conviction in England, and the IJ sustained the charge of removability based on that conviction. The IJ did not sustain the charge based on Danso's alleged "trafficker" status. At a subsequent hearing, Danso conceded removability for failure to maintain a valid immigrant visa, and the IJ sustained that charge of removability as well.
At his merits hearing, Danso requested that the IJ suspend removal proceedings to allow the USCIS to adjudicate Danso's pending immigrant visa petition.5 The IJ issued an oral decision denying Danso's requests for relief and ordering him removed from the United States. Specifically, the IJ (1) denied Danso's request for adjustment of status (or a continuance to pursue same), because, as an arriving alien in removal proceedings, he was ineligible to apply for adjustment of status6; and (2) denied Danso's requests for cancellation of removal because his inadmissibility under § 1182(a)(2)(A)(i)(II) barred that relief.
Danso filed an appeal with the BIA, asserting that the IJ wrongly determined that Danso was ineligible for cancellation of removal based on his prior conviction, because that conviction was expunged by effect of British law. This expungement, Danso argued, is analogous to an expungement obtained under the Federal First Offenders Act ("FFOA"), which provides that, if specified conditions are met, the disposition of a federal simple possession offense will have no legal effect.7 He also argued that the IJ erred in determining that Danso was ineligible for adjustment of status as an arriving alien in removal proceedings. After the BIA adopted and affirmed the IJ's decision, Danso filed this petition for review.
Danso contends that (1) the BIA violated his right to equal protection by not treating his expunged foreign conviction the same as it would a conviction expunged under the FFOA, and (2) the BIA erred as a matter of law in holding that Danso was ineligible for cancellation of removal and adjustment of his status.
Under 8 U.S.C. § 1252(a)(2)(C), we do not have jurisdiction to review "a final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2)." Under § 1252(a)(2)(D), however, we retain jurisdiction to review "constitutional claims or questions of law." As Danso's petition for review presents both a constitutional equal-protection claim and a separate question of law, we have jurisdiction to review it on the merits.
We review an alien's constitutional claim de novo.8 We also review questions of law de novo, deferring, however, to the BIA's interpretation of the statutes and regulations it administers.9
Danso bases his equal-protection claim on Dillingham v. INS, a case in which the Ninth Circuit held that the constitutional requirements of due process and equal protection prohibit the government from denying "rehabilitation"10 to an alien previously convicted of a simple possession offense and rehabilitated under foreign law, if his post-conviction conduct would qualify him for expungement under the FFOA.11 We turn therefore, to the applicability of the Dillingham decision to the instant case.
As Danso does here, Dillingham contended that his conviction had been expunged by operation of England's Rehabilitation of Offenders Act ("ROA"). The ROA provides that a conviction is treated as "spent," viz. expunged, if an offender complies with his sentence and is not thereafter convicted of an offense within a statutorily specified time.12 The duration of the rehabilitative period depends on the length of the original sentence and the age of the offender, but not on the nature of the original offense.13 After meeting the statutory requirements, "a person who has become a rehabilitated person ... shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction."14
The FFOA provides that a court may place a first-offender convicted of simple possession under 21 U.S.C. § 844 on probation for up to one year without entering a judgment of conviction.15 If the offender complies with the terms of probation, the court must dismiss the proceedings against him and discharge him from probation.16 If an offender subject to such a disposition was under the age of twenty-one at the time he committed the offense, the court must, on application of the offender, direct that all references to criminal proceedings against him be expunged from official records.17 After such an expungement, the disposition "shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose."18
In resolving Dillingham's equal-protection claim, the Ninth Circuit first recognized that "a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity," and thus is subject to rational basis review.19 The court cited its own precedent which established that (1) expungement under the FFOA applies to removal proceedings,20 (2) "persons who received the benefit of a state expungement law were not subject to deportation as long as they could have received the benefit of the [FFOA] if prosecuted under federal law,"21 and (3) "persons found guilty of a drug offense who could not have benefited from the FFOA were not entitled to receive favorable immigration treatment, even if they qualified for rehabilitation under state law."22
The court stated that "the [BIA's] categorical decision not to recognize foreign expungements for simple drug possession offenses did result in differential treatment between [Dillingham] and persons whose federal and state expungements of identical crimes were honored by the INS."23 After finding differential treatment, the court examined whether the difference was supported by a rational basis. It concluded that "the government's decision establishing an irrebuttable presumption against the validity of foreign expungements [is] unacceptably overbroad," and its purported interest in greater administrative efficiency does not provide a rational basis for "precluding Dillingham from eligibility for adjustment of status, while permitting aliens convicted domestically of identical offenses (and rehabilitated under similar state and federal rehabilitative statutes) to seek such relief."24
Finally, the Dillingham court addressed whether the BIA's interpretation of the term "conviction" in 8 U.S.C. § 1101(a)(48)(A), which was enacted after the FFOA, was entitled to Chevron deference and effectively superseded the FFOA's applicability to removal cases.25 The court concluded that, because the later immigration law did not repeal the FFOA in whole or in part, the FFOA unambiguously precluded the government's interpretation, making Chevron deference unwarranted.26
The BIA regarded Danso's contention that his conviction was expunged under British law as "irrelevant," because the ROA "was clearly rehabilitative in nature" and did not remove the disposition of Danso's criminal offense from the ambit of § 1101(a)(48)(A)'s definition of "conviction." The BIA also noted that Danso failed to offer any evidence that his conviction was eliminated "on the merits," and ruled that it continued to render him inadmissible under § 1182(a)(2)(A)(i)(II).
We are satisfied that the BIA correctly determined that Danso's British criminal offense resulted in a "conviction," as that term is defined by § 1101(a)(48)(A), which states:
The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien...
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