Fernandez-Bernal v. Attorney General of the U.S.

• Decision Date: 19 July 2001
• Docket Number: P,FERNANDEZ-BERNA,No. 99-15373,99-15373
• Citation: 257 F.3d 1304
• Parties: (11th Cir. 2001) LUIS ERNESTOetitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, OFFICE OF IMMIGRATION AND NATURALIZATION, Respondents
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1304

257 F.3d 1304 (11th Cir. 2001)

LUIS ERNESTO FERNANDEZ-BERNAL, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, OFFICE OF IMMIGRATION AND NATURALIZATION, Respondents.

No. 99-15373

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

July 19, 2001

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A92-186-506.

Before CARNES and MARCUS, Circuit Judges, and HAND^*, District Judge.

CARNES, Circuit Judge:

Luis Ernesto Fernandez-Bernal, a foreign national who is a permanent lawful resident of this country, has been convicted of a controlled substance offense in state court. Because of that conviction, he was ordered removed from the United States, and that removal order was affirmed by the Board of Immigration Appeals. He has petitioned us for review, contending that the expungement of his state court conviction means he should not be removed. For the reasons we will discuss, 8 U.S.C. § 1252(a)(2)(C) deprives us of subject-matter jurisdiction over his petition.

I. FACTS AND PROCEDURAL HISTORY

Fernandez-Bernal is a Peruvian national and a permanent lawful resident of the United States. On October 12, 1990, while living in California, he was arrested and charged with possession of cocaine in violation of § 11350 of the California Health and Safety Code. He pleaded nolo contendere to that charge and, on December 3, 1991, was convicted of it by a California superior court. The court ordered that imposition of a sentence be suspended upon condition that Fernandez-Bernal serve two years of probation following 120 days in the county jail, with credit for 30 days served and for 15 days good time/work time.

On January 17, 1998 Fernandez-Bernal took a trip to Peru to visit relatives. He returned to the United States on February 2, 1998, arriving at the Miami International Airport, and applied for admission as an arriving alien. When a computer check at the airport revealed his prior criminal history the Immigration and Naturalization Service charged him with being inadmissible¹ to the United States under § 1182(a)(2)² of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"), and sent him to the Krome North Processing Facility in Miami pending a removal hearing.³

On March 27, 1998, while Fernandez-Bernal awaited his removal hearing, the California Superior court expunged his 1991 conviction for possession of cocaine, acting under the authority of § 1203.4 of the California Penal Code. That statute provides, in relevant part:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation ... the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty. ... [T]he court shall thereupon dismiss the accusations or information against the defendant and ... he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

Cal. Pen. Code § 1203.4(a).⁴ Having determined that Fernandez-Bernal satisfied the conditions of this statute, the California trial court permitted him to withdraw his nolo contendere plea. It then entered a plea of "not guilty," and expunged his drug conviction.

Fernandez-Bernal's removal hearing was held on May 6, 1998. At the hearing Fernandez-Bernal admitted he had been found guilty of possession of cocaine in 1991, and had been convicted for that crime, but he argued that his conviction had been expunged and, as a result, it was not a "conviction" for removal purposes. The immigration judge found that the expungement of his drug conviction by the California court did not change the fact that Fernandez-Bernal had been "convicted of" possession of a controlled substance within the meaning of IIRIRA § 1182(a)(2), and that he was therefore inadmissible. See 8 U.S.C. § 1101(a)(48)(A). The judge ordered him removed from the United States pursuant to § 1182(a)(2)(A)(i)(II).⁵

Fernandez-Bernal appealed to the Board of Immigration Appeals ("BIA" or "Board"), which affirmed the immigration judge's removal order in a divided decision. The Board concluded that under the statutory definition of "conviction" in IIRIRA § 1101(a)(48)(A), state action which purports to expunge or otherwise remove a guilty plea by means of a state rehabilitative statute has no effect for purposes of immigration law. Accordingly, the Board affirmed the immigration judge's removal order and dismissed Fernandez-Bernal's appeal.

Fernandez-Bernal timely filed this petition for review. See id. § 1252.

II. CONTENTIONS OF THE PARTIES

Fernandez-Bernal contends that the BIA erred in finding him removable based on IIRIRA § 1182(a)(2)(A)(i)(II), because he does not have a "conviction" for a controlled substance offense within the meaning of § 1101(a)(48)(A). Section 1101(a)(48)(A) states:

The term "conviction" means ... a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). According to Fernandez-Bernal, the enactment of this statutory definition of "conviction" did not wipe out the effect of all state rehabilitative relief, including expungements, on removal proceedings. In enacting § 1101(a)(48)(A), he argues, Congress merely intended to include within the meaning of the term "conviction" dispositions under deferred adjudication statutes that require further hearings on the merits before the offender is adjudged convicted. Unlike one of those offenders, Fernandez-Bernal was actually convicted by a California superior court for possession of cocaine, but later had his conviction expunged. As a result of that expungement, Fernandez-Bernal maintains, his conviction for a controlled substance offense is not a "conviction" for the purposes of immigration law, 8 U.S.C. §§ 1101(a)(48)(A) & 1182(a)(2)(A)(i)(II), and, therefore, it cannot serve as the basis for removal.

Fernandez-Bernal also contends in the alternative that the definition of conviction in IIRIRA § 1101(a)(48)(A) is unconstitutional as applied to him. He claims that had he been prosecuted under federal law, he would have been eligible for relief under the Federal First Offender Act, 18 U.S.C. § 3607 ("FFOA"), which instructs that a disposition under its provisions is "not ... considered a conviction ... for any other purpose." See 18 U.S.C. § 3607(b). Fernandez-Bernal maintains that IIRIRA did not repeal the FFOA and, as a consequence, a disposition under the FFOA operates as an exception to the definition of "conviction" in § 1101(a)(48)(A). That being the case, he argues, equal protection principles prevent his expunged state law conviction from being considered a "conviction" for immigration purposes.

The government contends that this Court lacks jurisdiction to review the final order of removal against Fernandez-Bernal. Under IIRIRA § 1252(a)(2)(C), we must determine whether Fernandez-Bernal is "an alien who is removable by reason of having committed a criminal offense covered in § 1182(a)(2) ... of this title." 8 U.S.C. § 1252(a)(2)(C). If he is, then we lack jurisdiction to consider his petition for review of the final order of removal, except insofar as the petition raises a constitutional challenge to IIRIRA. See Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598 (11th Cir. 2000).

III. DISCUSSION

A. JURISDICTION

Section 1252(a)(2)(C) of IIRIRA significantly limits judicial review of a final order of removal. That section states:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C) (emphasis added). We have previously said that this provision strips us of jurisdiction to review a final order of removal of an alien who is removable "based on a conviction for an offense enumerated in the statute." Galindo-Del Valle, 213 F.3d at 598; see Le v. United States Attorney General, 196 F.3d 1352, 1354 (11th Cir. 1999). That said, the jurisdictional bar in § 1252(a)(2)(C) is worded more broadly than that. By its plain language, it strips us of jurisdiction if the petitioner is (1) an alien (2) who is removable (3) because he "committed a criminal offense" enumerated in the statute. 8 U.S.C. § 1252(a)(2)(C) (emphasis added); see Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001). The third prong of the jurisdiction-stripping provision is the petitioner's commission of a covered offense. Although not the only way, a conviction is one way of establishing the commission of an offense.

Because Fernandez-Bernal concedes that he is an alien, we need only determine whether he "committed" an offense covered in § 1182(a)(2) and, if so, whether he is "removable" within the meaning of the jurisdictional bar in § 1252(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(C); Galindo-Del Valle, 213 F.3d at 598.⁶ We have no trouble concluding that he "committed" a criminal offense covered in § 1182(a)(2). That section covers, among other offenses, violations...