Ramos v. Gonzales

• Decision Date: 12 July 2005
• Docket Number: No. 03-4050.,03-4050.
• Citation: 414 F.3d 800
• Parties: Miguel Angel RAMOS, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.3d 800

Miguel Angel RAMOS, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States^* Respondent.

No. 03-4050.

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2004.

Decided July 12, 2005.

Christopher Keleher (argued), Westmont, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Chicago, IL, John J. Andre (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Until the recent enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), which among other things amended the judicial review provisions governing orders of removal in immigration cases, this case would have required a straightforward inquiry. If, as the government argued, Miguel Angel Ramos was being removed because he had been convicted of a controlled substance offense, we would have had jurisdiction only to ensure that he was indeed the correct person, that the offense qualified as one covered by § 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(2)(C), and that Ramos raised no "substantial" constitutional claims. See Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997); Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001). If those preliminary inquiries demonstrated no flaws in the removal order, we would have lacked jurisdiction to proceed any further with the case. Flores v. Ashcroft, 350 F.3d 666, 668 (7th Cir.2003).

The REAL ID Act has changed all of that. It amended INA § 242(a) to permit the courts of appeals on a proper petition for review to consider constitutional claims and questions of law. See REAL ID Act § 106(a)(1)(A)(iii), amending 8 U.S.C. § 1252(a)(2) by adding a new subpart (D). This amendment was effective on the date of the enactment of the statute, May 11, 2005, and applies to all appeals from removal orders "issued before, on, or after the date of enactment." REAL ID Act § 106(b). We must therefore consider Ramos's arguments that the government violated his constitutional rights in the proceedings that led to his order of removal. We conclude that his rights were not infringed, and we therefore deny Ramos's petition for review.

I

In August 2000, Nebraska officials arrested Ramos for attempted possession of cocaine, charging him with violating Neb.Rev.Stat. §§ 28-201 and 28-416 (2003). Aside from the fact that he was doing the wrong thing, he was also in the wrong place at the wrong time. Ramos is a native and citizen of Mexico, who had entered the United States at some earlier point "without inspection," as the euphemism goes. This arrest led to a nolo contendere plea in state court, triggering a series of unfortunate events. Nebraska sentenced Ramos to a fine of $500 and court costs. As with many in his position, however, that formal punishment was slight compared to the real-world consequences of his mistake; his plea spelled the end to his effort to have his status adjusted based on his marriage to a U.S. citizen. Although the record on this part of the case is incomplete, Ramos asserts in his reply brief that he had an I-130 family petition approved for his benefit on August 17, 1992, and he had remained in this country ever since, complete with social security number and employment verification documents. The immigration authorities ultimately denied his application for adjustment on January 24, 2003, however, apparently because of the Nebraska conviction. Finally, the conviction prompted the then-INS to initiate removal proceedings against him (also on January 24, 2003), claiming that he was removable on two grounds: first, as an alien who was present in the United States without being admitted or paroled, INA § 237(a)(6)(A)(i), as amended, 8 U.S.C. § 1182(a)(6)(A)(i); and second, as a person who was automatically removable for committing a controlled substance offense, INA § 212(a)(2)(A)(i)(II); 8 U.S.C. § 1182(a)(2)(A)(i)(II).

On February 10, 2003, Attorney Bart A. Chavez entered his appearance before the immigration court on behalf of Ramos. He presented a form (EOIR-28) that Ramos purportedly had signed, which authorized Chavez to represent him. One of the first actions Chavez took on Ramos's behalf was to file a motion before the Nebraska court to set aside Ramos's drug conviction, relying on the authority conferred by Neb.Rev.Stat. § 29-2264. That court granted the motion in an order dated March 10, 2003, stating that "the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed."

After that date, proceedings continued before Immigration Judge (IJ) James R. Fujimoto, who sits on the Chicago immigration bench. Ramos, his lawyer, the witnesses, and the government's lawyer participated by teleconference from Council Bluffs, Iowa, as we noted in an earlier decision in this matter. See Ramos v. Ashcroft, 371 F.3d 948 (7th Cir.2004) (Ramos I). In that opinion, we rejected the government's argument that venue for this appeal properly lies in the Eighth Circuit rather than this court. Id. at 949. Although the government has now asked us to reconsider that decision, based on a new order issued by Chief Immigration Judge Michael J. Creppy that states that hearings will be presumed to be where the parties and lawyers are located, not where the IJ is, we decline the invitation. Ramos I established the law of the case with respect to venue for this proceeding, and we thus move on to the merits.

We said earlier that Ramos "participated" in the hearings held in Council Bluffs before the Chicago judge, but one of the points Ramos now raises before us is that he never appeared in person during any of the three IJ hearings leading up to his removal. At the preliminary hearing held on March 24, 2003, Chavez appeared on behalf of Ramos and announced that Ramos was waiving his right to appear in person. After a brief discussion, Judge Fujimoto continued the hearing to April 28, 2003. At that time, Chavez again appeared and again said that Ramos was waiving his right to appear. Chavez also made two important concessions at the April 28 hearing: he confirmed the existence of Ramos's substance abuse conviction (which by then the Nebraska court had expunged); and he conceded the facts alleged in the Notice to Appear relating to Ramos's presence in the United States without admission or inspection. The judge then continued the hearing until May 12, 2003. At that last hearing, Chavez again appeared for Ramos and for the third time waived Ramos's right to appear. At the conclusion of the hearing, the IJ issued an oral decision ordering Ramos removed from the United States.

In his opinion, the IJ found Ramos removable on both grounds that the INS had alleged. Based on Chavez's representation that Ramos admitted the factual allegations in the Notice to Appear, the IJ concluded that Ramos was removable under § 212(a)(6)(A)(i) of the INA for being present without admission or parole. With respect to the Nebraska conviction, the judge first acknowledged the state court's action setting it aside. Nevertheless, the judge noted that the Board of Immigration Appeals (BIA) had held in Matter of Roldan-Santoyo, 22 I & N Dec. 512 (BIA 1999), that dismissals under a state rehabilitative statute like Neb.Rev.Stat. § 29-2264 do not erase a conviction for immigration purposes. For that reason, the IJ found that Ramos was also removable because he had a conviction covered by 8 U.S.C. § 1101(a)(48)(A) (his controlled substance offense), for which there had been a formal judgment of guilt and a form of punishment (the $500 fine).

At that point, Ramos (represented by new counsel) returned to the Nebraska court and secured an order nunc pro tunc, which reissued the March 18 expungement order and added the following language: "The Court further finds that since the Defendant was sentenced to a fine only, that rehabilitative efforts of the Defendant are not considered or relevant under Nebraska Revised Statutes § 29-2264, and the Defendant is entitled to have said judgment set aside without a showing of rehabilitation." Equipped with this order Ramos went to the BIA and filed a motion to remand the case to the IJ with instructions that the decision be reconsidered. The BIA refused to do so. Instead, it affirmed the IJ's decision and denied the motion to remand. It found no due process violation based on Ramos's lack of personal attendance at the three hearings. It said nothing about any equal protection claim. It did, however, find that Ramos had not met his burden under Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), of showing that his counsel was ineffective; and it concluded that the conviction, even with the extra language about rehabilitation, sufficed for immigration purposes. On the last point, the BIA relied on this court's decision in Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir.2003), which upheld the rule of Matter of Roldan-Santoyo. Ramos then petitioned for review in this court.

II

Before this court, Ramos has presented two constitutional arguments for relief: first, that the manner in which the government conducted the proceedings before the IJ violated his due process rights, and second, that it violates equal protection principles to remove him based on his now-expunged, minor state court conviction, when the government could not remove him on that basis had he been convicted under the analogous Federal First Offender Act (FFOA), 18 U.S.C. § 3607. Our ability to reach these arguments was limited before the passage of the REAL ID Act. At this point, however, as we noted at the outset of this opinion, the INA now says that "[n]othing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or...