Fequiere v. Ashcroft, 98-3048.

• Decision Date: 25 January 2002
• Docket Number: No. 98-3048.,98-3048.
• Citation: 279 F.3d 1325
• Parties: Theodore FEQUIERE, Petitioner, v. John ASHCROFT, United States Attorney General, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

279 F.3d 1325

Theodore FEQUIERE, Petitioner, v. John ASHCROFT, United States Attorney General, Immigration and Naturalization Service, Respondents.

No. 98-3048.

United States Court of Appeals, Eleventh Circuit.

January 25, 2002.

Faith Gay, D.A. Jeremy Telman, Sidley & Austin, New York City, for Petitioner.

David V. Bernal, Ernesto H. Molina, Steven Kim, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Janice B. Neetenbeek, Miami, FL, for Respondents.

Petition for Review of a Final Order of the Board of Immigration Appeals.

Before: ANDERSON, Chief Judge, and TJOFLAT and BIRCH, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

On January 24, 1990, an immigration judge issued an order to show cause why the appellant, a Haitian national who had been admitted into the United States for permanent residence and was living in Palm Beach County, Florida, should not be deported under section 241(a) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1227(a) (1999), because, in 1986, he had committed an aggravated felony, the possession of cocaine with intent to distribute, in violation of Fla. Stat. Ann. § 893.13 (West 2000). Responding to the order to show cause, appellant requested a withholding of deportation pursuant to sections 212(c) and (h) of the Act, 8 U.S.C. §§ 1182(c) and (h) (1999).¹ In support of his request, appellant represented that he had a wife and six minor children living in Palm Beach County, and that he was their principal source of support.²

Appellant's case was heard before an immigration judge. At the hearing, appellant, after being place under oath, admitted that he had been convicted as recited in the order to show cause. The judge sympathized with appellant's situation — that his deportation would deprive his wife and children of a husband and father — but said that Congress had spoken: appellant's 1986 conviction required that he be deported.³ The judge denied appellant section 212 relied and ordered him deported.

Appellant appealed the immigration judge's decision to the Board of Immigration Appeals (BIA).⁴ There, he contended that his 1986 conviction should be disregarded because he had not committed the offense of which he was convicted, possession of cocaine with intent to distribute. He admitted that he had been present in a house in which the police had found cocaine, but that he was an innocent bystander who had no knowledge that the drugs were there. He pled guilty because the public defender had advised him that, if he did so, he would not have to go to prison. If his conviction were disregarded, he argued, that he had a wife and six children living in Palm Beach and that he dutifully supported them should warrant the relief he was seeking. The BIA affirmed. Appellant's 1986 conviction constituted an aggravated felony and made appellant ineligible for withholding of deportation. Appellant now appeals the BIA's decision.

II.

In his brief to us, appellant raises three issues. Only one is pertinent: whether, at the hearing before the immigration judge, the INS established that appellant had been convicted of the 1986 drug offense cited in the order to show cause.⁵ We conclude that the evidence before the judge established that fact, and therefore affirm.

Section 240(c)(3) of the Act required the INS to establish "by clear and convincing evidence" that appellant, an admitted alien, was deportable. 8 U.S.C. § 1229a(c)(3) (1999). In this case, to establish that appellant was deportable, the INS had to prove was that he had been convicted of the drug offense cited in the order to show cause. Under section 1229a(c)(3)(B), any of the following "shall constitute proof of a criminal conviction":

(i) An official record of judgment and conviction.

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

(iii) A docket entry from court records that indicates the existence of the conviction.

(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.

(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a State official associated with the State's repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the 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.

(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution's authority to assume custody of the individual named in the record.

8 U.S.C. § 1229a(c)(3)(B).

Appellant asks us to reverse the BIA's decision because, at the hearing before the immigration judge, the INS did not establish his 1986 conviction by one of these seven forms of proof. In his view, section 1229a(c)(3)(B) required such proof; the fact that he acknowledged under oath that he had been convicted as alleged would not constitute the "reasonable, substantial, and probative evidence" required to sustain the immigration judge's decision. 8 U.S.C. § 1229a(c)(3)(A).

The problem with appellant's argument is that section 1229a(c)(3)(B) does not state that the forms of proof it lists constitute the sole means of establishing a criminal conviction; rather, the statute merely says that such forms "shall constitute proof of a criminal conviction." Other forms of proof will suffice if "probative." One such form, obviously, is the alien's admission of the conviction under oath.

The decision of the BIA is,...