Resendiz-Alcaraz v. U.S. Atty. Gen.

• Decision Date: 10 September 2004
• Docket Number: No. 03-13275.,03-13275.
• Citation: 383 F.3d 1262
• Parties: Fidencio RESENDIZ-ALCARAZ, Petitioner, v. U.S. ATTORNEY GENERAL, John Ashcroft, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

383 F.3d 1262

Fidencio RESENDIZ-ALCARAZ, Petitioner, v. U.S. ATTORNEY GENERAL, John Ashcroft, Respondent.

No. 03-13275.

United States Court of Appeals, Eleventh Circuit.

September 10, 2004.

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Eduardo Rigoberto Soto, Coral Gables, FL, for Petitioner.

Kurt B. Larson, David V. Bernal, Andrew C. MacLachlan, U.S. DOJ, OIL-Civ. Div., Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BLACK and MARCUS, Circuit Judges, and SMITH^*, District Judge.

BLACK, Circuit Judge:

Petitioner Fidencio Resendiz-Alcaraz, an alien present in the United States without being admitted or paroled, was convicted of a controlled substance offense in state court. The conviction was expunged after Petitioner served one year of probation. Subsequently, the Immigration and Naturalization Service (INS) initiated removal proceedings against Petitioner, which resulted in an order of removal that was affirmed by the Board of Immigration Appeals (BIA). Petitioner now asks this Court to review the removal order, contending he is entitled to cancellation of removal because his state court conviction was expunged. We conclude the state conviction is indeed a "conviction" for immigration purposes and, therefore, 8 U.S.C. § 1252(a)(2)(C) deprives us of subject matter jurisdiction over the petition. Accordingly, we affirm the decision of the BIA.

I. FACTUAL BACKGROUND

Petitioner is a citizen of Mexico who entered the United States without inspection in 1984. On July 3, 1994, he was detained by the Pike County, Missouri, Sheriff's Department for driving with a suspended driver's license and possession of less than 35 grams of marijuana. He pled guilty to the possession charge, a class A misdemeanor under Missouri law. The Pike County Circuit Court entered a suspended sentence for one year unsupervised probation. After a year, the court entered an order to close the record pursuant to Mo.Rev.Stat. § 610.105, expunging the conviction.

On July 13, 2001, the INS filed a Notice to Appear (NTA), charging Petitioner as being subject to removal from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled, and § 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled substance violation.¹ At the removal hearing, Petitioner admitted the allegations contained in the NTA and the immigration judge sustained the charges of removal. Petitioner then submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b).

Under § 1229b(b), an alien may avoid removal from the United States and adjust his status to that of a lawful permanent resident (LPR) if he: (1) had continuous physical presence in the United States for ten years; (2) is of good moral character; (3) has not been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3); and (4) shows that he or his citizen or LPR spouse, parent, or child would suffer "exceptional and extremely unusual hardship." 8 U.S.C. § 1229b(b)(1).

The INS moved to pretermit Petitioner's application, arguing Petitioner was ineligible for cancellation of removal because his Missouri conviction was for an offense under 8 U.S.C. § 1182(a)(2). On November 27, 2001, the immigration judge granted the agency's motion to pretermit. Petitioner then filed a motion for reconsideration and a motion to suppress his admission of removability based on the state conviction. The immigration judge granted the motion to suppress, but denied the motion for reconsideration based on the BIA's decision in In re Roldan-Santoyo, 22 I. & N. Dec. 512, 1999 WL 126433 (BIA 1999), order vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), which held that an expunged state conviction is treated as a "conviction" for immigration purposes under 8 U.S.C. § 1101(a)(48)(A). Id. at 521. The BIA affirmed the immigration judge's decision without opinion on May 30, 2003. This petition followed.

II. DISCUSSION

We first address our jurisdiction to consider the merits of the petition. We then address Petitioner's constitutional arguments.

A. Jurisdiction

Before we can proceed to the merits of the petition, we must first consider whether we have subject matter jurisdiction to hear the petition at all. We review subject matter jurisdiction de novo. Garcia v. Attorney Gen., 329 F.3d 1217, 1220 (11th Cir.2003).

Our jurisdiction to review final orders of removal is significantly limited by 8 U.S.C. § 1252(a)(2)(C):

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.

It is well-established that this provision strips us of jurisdiction to review a final order of removal of "(1) an alien (2) who is removable (3) because he committed a criminal offense enumerated in the statute." Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1308 (11th Cir.2001) (citation and internal quotation marks omitted). One method of determining whether an alien committed a covered offense — and the method pertinent in this case — is through the fact of conviction. Id. at 1308-09. Of course, we retain jurisdiction to determine the underlying jurisdictional facts at issue. See Galindo-Del Valle v. Attorney Gen., 213 F.3d 594, 597-98 (11th Cir.2000).

Petitioner admits he is an alien, but disputes that he is removable because he committed a covered offense. In his view, he did not "commit[] a criminal offense" as specified in § 1252(a)(2)(C), as his state conviction was expunged under a rehabilitation scheme similar to the Federal First Offender Act (FFOA), 18 U.S.C. § 3607.²

We disagree. State convictions satisfy § 1252(a)(2)(C), regardless of whether expungement occurred. We conclude Petitioner is removable because he committed a covered offense and, accordingly, we lack jurisdiction to review the merits of the petition.³

Some background concerning the BIA's fluid definition of "conviction" is useful before addressing Petitioner's argument. Prior to enactment of the FFOA, the BIA's settled policy was to disregard the expungement of drug convictions. See, e.g., Matter of A-F-, 8 I. & N. Dec. 429, 445-46, 1959 WL 11595 (BIA, A.G.1959). After the enactment of the FFOA, the BIA ruled that a first-time drug possession offense expunged under the FFOA was not a conviction for immigration purposes. Matter of Werk, 16 I. & N. Dec. 234, 236, 1977 WL 39259 (BIA 1977). This rule gradually was expanded to aliens with state convictions similar to those covered by the FFOA.⁴ See In re Manrique, 21 I. & N. Dec. 58, 64, 1995 WL 314732 (BIA 1995). Specifically, the BIA in Manrique held "that an alien who has been accorded rehabilitative treatment under a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the provisions of 18 U.S.C. § 3607(a) (1988) had he been prosecuted under federal law." Id. Thus, under Manrique, a drug conviction expunged under state law would not be considered a conviction for immigration purposes if (1) the alien was convicted of simple drug possession; (2) it was a first offense; (3) the alien had not previously received first-offender status; and (4) the court entered an order pursuant to a state rehabilitative statute under which the alien's conviction was deferred or dismissed upon successful completion of the probation program. Id. Petitioner insists that his expunged state conviction satisfies the Manrique requirements and argues for application of Manrique in this case.⁵

Manrique, however, was decided in 1995. The next year, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (1996), which became effective on April 1, 1997.

Section 322(a) of IIRIRA, codified at 8 U.S.C. § 1101(a)(48)(A), defined the term "conviction" as follows:

The term "conviction" means, with respect to an alien, 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 guilty, and

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

The BIA has ruled that this definition of conviction superseded Manrique, and that state convictions expunged under a rehabilitative statute are still convictions for immigration purposes. Roldan-Santoyo, 22 I. & N. Dec. at 528. The BIA based this holding on both the statutory language and the legislative history surrounding the enactment of IIRIRA. See id. at 524-28.

The question thus becomes whether the BIA's interpretation of § 1101(a)(48)(A) is permissible. The BIA's interpretation of the statute is subject to established principles of deference. Thus, "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). Where the statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782.

The language of § 1101(a)(48)(A) is quite clear — an alien will be considered to have a...