Sanusi v. Gonzales, 05-3355.

• Decision Date: 23 January 2007
• Docket Number: No. 05-3676.,No. 05-3355.,05-3355.,05-3676.
• Citation: 474 F.3d 341
• Parties: Hendry SANUSI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.3d 341

Hendry SANUSI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-3355.

No. 05-3676.

United States Court of Appeals, Sixth Circuit.

Argued: July 27, 2006.

Decided and Filed: January 23, 2007.

ARGUED: Scott E. Bratton, Margaret Wong & Associates, Cleveland, Ohio, for Petitioner. Mary Jane Candaux, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Scott E. Bratton, Margaret Wong & Associates, Cleveland, Ohio, for Petitioner. Mary Jane Candaux, Mark C. Walters, United States Department of Justice, Washington, D.C., for Respondent.

Before: SILER, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

In these consolidated appeals, petitioner Hendry Sanusi petitions for review of two orders of the Board of Immigration Appeals (the "BIA"). We deny the petitions for review on the ground that the state court's vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner. Zaitona v. I.N.S., 9 F.3d 432 (6th Cir.1993). For this reason, we hold that the present case is distinguishable from Pickering v. Gonzales (amended opinion), 465 F.3d 263 (6th Cir. 2006).

I.

Petitioner Sanusi, a native and citizen of Indonesia, entered the United States on August 16, 1999, as a student pursuant to an F-1 student visa. On January 3, 2002, petitioner was cited for property theft in violation of ARK. CODE ANN. § 5-36-103, which apparently occurred in the city of Conway, Faulkner County, Arkansas. The details of the crime are not set forth in the record or briefs. The offense is, at a minimum, a "class A misdemeanor" (§ 5-36-103(b)(4)) with a maximum possible sentence of one year in prison.¹ ARK. CODE ANN. § 5-4-401(b)(1). In petitioner's case, the Faulkner County district court ordered him to pay a $500 "criminal fine" and $100 in "criminal costs." See ARK. CODE ANN. § 5-4-323(e) (authorizing a fine "not exceeding one thousand dollars"). On January 22, 2003, petitioner paid the fine in lieu of a court appearance.

On March 26, 2003, the Department of Homeland Security (the "DHS") charged petitioner with removability as an alien convicted of a crime involving moral turpitude within five years of his admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(i).²

On July 9, 2003, petitioner, through counsel, filed a Petition for Writ of Coram Nobis (the "Petition") with the Faulkner County district court, requesting vacation of his theft conviction. In the Petition, Sanusi referenced the deportation proceedings, noted that he was subject to deportation action, and averred that "[t]he only basis for preventing this collateral consequence of deportation is through a vacation of the conviction" (Petition, ¶¶ 4, 5). Petitioner further asserted that he "was not advised on the citation that by paying the fine and avoiding a court appearance his guilty plea could or would result in drastic and severe immigration consequences, specifically deportation from the United States" (Id. at ¶ 6). In this regard, petitioner complained that:

In this present case the District Court of [sic] established a procedure whereby one could simply pay the fine and resolve the matter expeditiously, without resort to court appearances and other costly efforts. The procedure does not contemplate that aliens who follow the established procedures subject themselves to deportation and lifetime banishment from the United States. Without relief under this Petition for a Writ of Coram Nobis, the reasonable procedure established by this court will be converted to a "Life Sentence" by the [I]mmigration Act.

* * *

The fundamental and constitutional fault in the present case is in the assertion that the (petitioner) was not on notice by the Arkansas Uniform Enforcement Citation nor advised of the drastic immigration consequences of the guilty plea, which occurred when he paid the fine. It is highly likely that had petitioner been aware of the lurking harm to the petitioner and his entire family resulting from the payment of the fine, other creative means would have been implemented to assure a just and fitting punishment for the crime without risking this immigration consequence.

* * *

The Immigration Court has set the matter for hearing on July 28, 2003 after which his fate will be sealed. The Immigration Judge is compelled to order deportation and he has no authority to do otherwise. There is no appeal of his decision to any Federal Court.

On August 11, 2003, the Faulkner County district court granted a writ of error coram nobis (the "Writ") vacating petitioner's theft conviction.³ There is no reference in the record or by the parties regarding whether there was a hearing on the matter, and the certified court docket entry does not give any explanation for the basis for granting the Petition. It merely notes: "On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City attorney had no objection. Judge granted the motion."

Prior to the master hearing date before the Immigration Judge ("IJ"), petitioner filed a Motion to Terminate Removal Proceedings for Lack of Final Conviction, arguing that in light of issuance of the Writ vacating his conviction, he no longer had a conviction for immigration purposes and respondent thus could not meet its burden of establishing that petitioner was deportable as charged in the Notice to Appear.

On February 10, 2004, following a hearing to determine whether petitioner was removable as charged in the Notice to Appear, the IJ issued his Order and Decision. The IJ found that petitioner's record of conviction and his admission to the conviction demonstrated that he was convicted of a crime involving moral turpitude within the meaning of the Immigration and Naturalization Act ("INA"). Citing BIA precedent, Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), in which the BIA held that the immigration court is not to give effect to an order entered by a state criminal court when the sole purpose of the order is to provide immigration relief, the IJ concluded that the Writ vacating petitioner's conviction was issued by the Arkansas district court to ameliorate the immigration consequences to petitioner and thus was ineffective in preventing deportation.

Petitioner appealed the IJ's adverse decision to the BIA, which affirmed without opinion on March 3, 2005. Petitioner thereafter timely filed his first petition for review with this court (Case No. 05-3355).

On April 4, 2005, petitioner filed a motion to reconsider the March 3, 2005, order with the BIA. In an order dated May 6, 2005, the BIA denied petitioner's motion. Petitioner then filed his second petition for review (Case No. 05-3676). The two petitions for review have been consolidated for consideration by this court.

II.

The BIA had jurisdiction over Sanusi's petition for review pursuant to 8 C.F.R. § 1003.1(b)(3), which confers appellate jurisdiction over decisions of immigration judges in removal proceedings. The BIA may reconsider any case in which it has rendered a decision. 8 C.F.R. § 1003.2(a). This court has jurisdiction under 8 U.S.C. § 1252(a), which gives the Court of Appeals exclusive jurisdiction to review final orders of removal. Both of petitioner Sanusi's petitions for review were timely filed within thirty days of the BIA's orders. INA § 242(b), 8 U.S.C. § 1252(b)(1). Venue is likewise proper because the proceedings before the IJ were completed in Memphis, Tennessee, within this judicial circuit. 8 U.S.C. § 1252(b)(2).

III.

"In considering a petition for review of a decision of the Board of Immigration Appeals, we review the Board's legal determinations de novo . . . and its factual findings under the substantial evidence standard[.] The substantial evidence standard requires us to uphold the Board's findings as long as they are `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005) (citations omitted). Findings of fact are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004). Where the BIA affirms without opinion the decision of the IJ, this court directly reviews the decision of the IJ. Denko v. I.N.S., 351 F.3d 717, 730 (6th Cir.2003).

"The question whether [an alien's] conviction renders him removable . . . is a non-discretionary, purely legal question; the Courts of Appeal ordinarily must review such questions de novo." Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005).

The BIA's denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of discretion. Denko, 351 F.3d at 723 (6th Cir.2003). "An abuse of discretion can be shown when the IJ or Board offers no `rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis such as invidious discrimination against a particular race or group.'" Id. (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir.1982).) "When the BIA adopts the reasoning of the IJ, we review the IJ's decision to determine whether the BIA abused its discretion." Id.

IV.

Recently, in Pickering, our court reaffirmed the well-established principle of law that the vacation of a conviction is ineffective for immigration purposes if it was done so solely to avoid immigration hardship:

Pickering first argues that the BIA's decision fails as a matter of law. However a review of that decision and the applicable case law reveals that the BIA correctly interpreted the law by holding that, when a court vacates an alien's conviction for reasons solely related to rehabilitation or to avoid adverse immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the...