Le v. Lynch

• Decision Date: 23 February 2016
• Docket Number: No. 13–60664.,13–60664.
• Citation: 819 F.3d 98
• Parties: Anh LE, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

819 F.3d 98

Anh LE, Petitioner

v.Loretta LYNCH, U.S. Attorney General, Respondent.

No. 13–60664.

United States Court of Appeals, Fifth Circuit.

Feb. 23, 2016.

Brian Keith Bates, Esq., Reina & Bates Immigration & Nationality Lawyers, Houston, TX, J. Joseph Reina, Reina & Bates Immigration & Nationality Lawyers, Dallas, TX, for Petitioner.

Donald A. Couvillon, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Loretta Lynch, U.S. Attorney General.

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

Before STEWART, Chief Judge, and CLEMENT, and ELROD, Circuit Judges.

CARL E. STEWART

, Chief Judge.

IT IS ORDERED that the opinion previously filed in this case, Le v. Lynch, 810 F.3d 314 (5th Cir.2016), is WITHDRAWN. The following opinion is substituted therefor:

Petitioner Anh Le ("Le") appeals the Board of Immigration Appeals' ("BIA" or the "Board") decision to uphold an immigration judge's finding that Le was statutorily ineligible for adjustment of status under Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act ("INA"). The Board determined that Le failed to demonstrate that he was admissible to the United States as a lawful permanent resident ("LPR"). Le also appeals the BIA's denial of his motion for reconsideration. For the following reasons, the petition for review is DENIED.

FACTUAL BACKGROUND

Le escaped Vietnam and arrived in Canada as a refugee in 1978. After his arrival, he was convicted of two separate criminal offenses. The issues on appeal stem from Le's first arrest and conviction in 1991.¹ Le was arrested after picking up a friend who possessed cocaine while Le was driving his vehicle. Le was searched for drugs and taken to the police station to be questioned but no drugs were found on his person. As a result of this arrest, Le was fined $700 but served no jail time. Records from his arrest showed that Le was convicted of possession of cocaine, a controlled substance offense, although Le asserts that he has never used or possessed any illegal drugs. At the time, Le had been living in Canada for approximately four years and was studying English. He contends that he had not fully mastered the English language and that he was not told, nor did he understand, the nature of the criminal charge against him.

In 2002, Le was admitted to the United States on a thirty-day visitor's visa. In May of that same year, he was granted a nonimmigrant waiver of inadmissibility for one year through 2003, allowing him to remain in the United States. His wife, Thu Van Nguyen, became a naturalized United States citizen in 2005 and filed an "immediate relative" visa petition on Le's behalf in 2008. Le applied for adjustment of his status to lawful permanent resident in 2010 under 8 U.S.C. § 1255(a)

, based on Nguyen's approved immediate relative visa petition. On his application, Le indicated that he was previously "arrested, cited, charged, indicted, fined, or imprisoned for breaking a[ ] law or ordinance" and that he was not pardoned for that offense. He attached a description of his criminal history that only listed his 1998 offense.²

When reviewing his adjustment of status application, the Department of Homeland Security ("DHS") raised the question of whether Le was ineligible for LPR status due to his 1991 controlled substance offense, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)

. The Government challenged Le's admissibility and filed four documents in support of its position: a government inspection worksheet noting that Le was convicted of and received a $700 fine for a drug possession offense on January 11, 1991; a National Automated Immigration Lookout System Inquiry noting that Le was refused entry into Toronto and had at least one conviction for possession; a Canadian fingerprint report showing Le's photograph and fingerprint with a summary of a possession of narcotics charge; and documentation from an Immigration and Naturalization Service inspector showing that Le was inadmissible when he previously applied for nonimmigrant status.

Le's application was denied in April 2008. The Government commenced removability proceedings in 2009 because Le had remained in the United States beyond the 2003 expiration date of his nonimmigrant visitor visa. A Notice to Appear was issued charging Le with remaining longer than authorized.

PROCEDURAL HISTORY

I. Immigration Judges Law and Walton

At Le's initial hearing in 2009 before Immigration Judge Phillip Law ("IJ Law"), Le indicated that he would be seeking adjustment of status to lawful permanent resident. DHS again raised the question of whether Le was inadmissible because of his 1991 offense. At a second hearing in 2010, Le testified about his 1991 arrest in Toronto and stated again that he had no drugs on his person at the time of his arrest and that he never used, purchased, or sold illegal drugs. Although Le was represented by an attorney, he did not have a translator when meeting with counsel prior to his court appearance. Le was only able to use a translator while in court. He stated that the translator explained to him that his classmate was buying and using cocaine, and that the judge confirmed that because Le was the owner of the vehicle he was charged as a result of picking up his classmate. Nevertheless, Le testified that he was not charged with possession of narcotics or possession of cocaine.

Following Le's testimony before IJ Law, he filed documentation from the Canadian government indicating that he had received a pardon for his 1991 "Breach of the Narcotic Control Act" conviction and for his subsequent 1998 offense. Le also submitted a letter from the Canadian National Pardon Centre ("NPC"), which explained that while a pardon "no longer reflect[s] adversely on that person's character, and removes any disqualification to which the individual is subjected," a pardon "does not erase the fact that an individual was convicted of an offence(s) and has a criminal record."

The letter informed Le that a pardon "may not be recognized by foreign governments" and "will not guarantee entry or visa privileges to another country." Le submitted another letter which showed that the NPC cleared his criminal record from his public file. The letter advised Le that the NPC would destroy the last open record of his criminal charges from its system if Le did not contact the NPC within two months. There is no record of Le contacting the NPC during that two-month period.

In 2011, Le's case was reassigned to immigration judge Richard Walton ("IJ Walton"). While testifying before IJ Walton, Le reiterated previous testimony concerning the 1991 conviction and IJ Walton found that Le's testimony was generally consistent with his testimony before IJ Law. IJ Walton determined, however, that Le was statutorily ineligible for adjustment of status because he did not meet "his burden of proof to show he was not convicted of an offense relating to a controlled substance" under 8 C.F.R. § 1240.8(d)

. IJ Walton found that Le could have, for example, "demonstrated that the Canadian Narcotic Control Act encompasses offenses relating to drugs not defined in our Controlled Substances Act ("CSA")" or that "the information contained in each of the [Government] exhibits is somehow incorrect or lacking in probative value." IJ Walton emphasized that the documentary evidence submitted by both Le and the Government "consistently point[ed] to the existence of a conviction for possession of a controlled substance, perhaps cocaine." He found that Le's testimony that he "did not know why he was arrested in 1991, and whether it was for a drug offense, [was] insufficient to overcome the documentary evidence." He noted that Le's testimony, "while credible, was taken over twenty years after an incident where he admitted that he did not fully understand the charges brought against him because of a language barrier." Finally, IJ Walton determined that the Canadian pardon did not nullify the conviction for United States immigration purposes. Le was ordered removed to Canada, and he appealed to the BIA.

II. The BIA's Review

Reviewing the decision de novo, the BIA affirmed IJ Walton's denial of the adjustment of Le's status. The Board stated that it found ample evidence in the record to support IJ Walton's finding of a potential disqualifying drug conviction, including Le's criminal record print-out reflecting a fine and jail time on a charge of possession of narcotics and Le's own submission of a pardon for his conviction. The BIA noted that, under the REAL ID Act, 8 U.S.C. § 1229a(c)(4)(A)

; 8 C.F.R. § 1240.8(d), Le bore the burden of resolving any ambiguities in the record and that it was his burden to show that the drug involved does not correspond to a controlled substance that would render Le inadmissible. The Board also agreed with IJ Walton that Le's testimony did not satisfy his burden of proof, particularly in light of his admission that he lacked a clear understanding of the charge.

Finally, the BIA determined that Le was not relieved of his burden of proof by asserting that the relevant records concerning his 1991 conviction no longer existed. Although the Board acknowledged Le's evidence that court records of his convictions were no longer available and may have been destroyed, the BIA noted that "while pardoned conviction records are removed from public access and may be purged from the archives of local jurisdictions, sealed records may be retained at the federal level." The BIA advised Le of his option to "apply to the Royal Canadian Mounted Police [ ("RCMP") ] for the release of any pardoned conviction records in its possession" and provided the link to a website with the RCMP's instructions for obtaining pardoned conviction records.

Le appealed the BIA's decision, which the BIA dismissed. Le filed a motion for reconsideration. The BIA also denied Le's motion. Le timely petitioned this court for review of the BIA's denial. Le now raises two issues: (1)...