Waugh v. Holder

• Decision Date: 22 June 2011
• Docket Number: No. 10–9551.,10–9551.
• Citation: 642 F.3d 1279
• Parties: Vickers Virley Fritzgerald WAUGH, a/k/a Vickers Virley Fitzgerald Waugh, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

642 F.3d 1279

Vickers Virley Fritzgerald WAUGH, a/k/a Vickers Virley Fitzgerald Waugh, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 10–9551.

United States Court of Appeals, Tenth Circuit.

June 22, 2011.

Submitted on the briefs: ^*Hakeem Ishola, Ishola Tarin, P.L.L.C., West Valley City, UT, for Petitioner.David V. Bernal, Assistant Director, Tiffany L. Walters, Trial Attorney, and Tony West, Assistant Attorney General, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior Circuit Judge.McKAY, Circuit Judge.

Petitioner, a Jamaican citizen and lawful permanent resident of the United States, petitions for review of the decision of the Board of Immigration Appeals (BIA) ordering him removed. In August 2009, petitioner pled guilty in Utah state court to one count of unlawful sexual contact with a minor, a third-degree felony under Utah law. Following his conviction, the government instituted removal proceedings, and the immigration judge (IJ) found petitioner removable on two grounds: (1) for sexual abuse of a minor, which constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(A); and (2) for child abuse. The first ground made petitioner removable under § 1227(a)(2)(A)(iii), and the second ground made him removable under § 1227(a)(2)(E)(i).¹

While petitioner's removal proceedings were pending, the Supreme Court issued its opinion in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), in which it held that, for a non-citizen defendant, the Sixth Amendment right to effective assistance of counsel includes the right to be advised of the risk of removal resulting from a guilty plea. Relying on Padilla, petitioner filed a motion to withdraw his guilty plea in state court, arguing he was not properly advised that pleading guilty to the charge of unlawful sexual contact with a minor would make him removable.

Petitioner also moved the IJ to terminate the removal proceedings. Petitioner argued that the government had to prove, as part of its burden to establish grounds for removal by clear and convincing evidence, that the Utah conviction underlying his removal comported with his right to effective assistance of counsel as described in Padilla. Petitioner contended the government could not meet this burden of proof, so the proceedings should be terminated. Alternatively, he asked the IJ to continue the proceedings until his motion to withdraw his guilty plea was resolved in state court.

The IJ denied both requests. The IJ held that petitioner's contention that he was denied the effective assistance of counsel in connection with his guilty plea was a collateral attack on his conviction that the IJ did not have authority to consider and that should be resolved in the state court. The IJ further held that, until it was vacated or overturned by the state court, petitioner's conviction constituted a valid conviction to which the IJ had to give full faith and credit. The IJ concluded the evidence established petitioner was convicted of unlawful sexual contact with a minor and that the conviction made him removable under § 1227(a)(2)(A)(iii) and § 1227(a)(2)(E)(i). The IJ therefore ordered petitioner removed.

Petitioner appealed the IJ's order to the BIA, arguing the IJ should have terminated the proceedings because the government could not meet its burden of proof, or, at a minimum, should have continued the proceedings until the state court challenge was resolved. Petitioner did not challenge the IJ's determination that the conviction, if valid, was grounds for removal under either § 1227(a)(2)(A)(iii) or § 1227(a)(2)(E)(i), and he does not challenge that determination in his petition for review.

The BIA denied petitioner relief on appeal. Like the IJ, the BIA held that petitioner's arguments were in the nature of a collateral attack on his conviction and could not be entertained by the IJ or the BIA. Further, it held that petitioner's pursuit of a collateral attack in state court and his contention that his conviction would ultimately be invalidated based on Padilla did not undermine the finality of his conviction for immigration purposes. The BIA noted petitioner's motion to withdraw his guilty plea was still pending in state court, and held that, unless and until petitioner's conviction was overturned by the state court, it was final for immigration purposes and supported the removal order.

Petitioner makes essentially the same arguments in his petition for review that he made to the IJ and the BIA, but couches them in constitutional terms, arguing that he was denied due process in the agency proceedings. He does so, no doubt, because our jurisdiction to review an order of removal against an aggravated felon is significantly limited: we may review the removal order only to the extent petitioner raises constitutional or legal challenges to the order, see 8 U.S.C. § 1252(a)(2)(C), (D).

Petitioner first argues that he was denied due process when the BIA determined that he had been “convicted of a removable ‘aggravated felony’ offense, notwithstanding that the alleged conviction is not final in Utah state court and the conviction was not in comport with the Sixth Amendment, given that Petitioner's defense counsel failed to disclose true immigration consequences of the plea as required by Padilla.” Pet'r Opening Br. at 2–3. Petitioner's argument relies on two false premises: 1) that the pendency of the state court proceedings challenging his guilty plea on Sixth Amendment grounds made his conviction not final for immigration purposes; and 2) that Padilla expanded the elements the government must prove to establish that an alien has been convicted of a removable offense, to include proof that the underlying conviction did not violate the Sixth Amendment.

At the outset, we note that since the BIA issued its decision, the Utah courts have denied petitioner relief on his motion to withdraw his guilty plea. See State v. Waugh, No. 20100737–CA, 2010 WL 4379465 (Utah App. Nov. 4, 2010) (per curiam) (unpublished), cert. denied, 251 P.3d 245 (Utah 2011). Although it appears that even petitioner would agree his conviction is now final, we conclude the resolution of the state court proceedings did not moot petitioner's arguments about the use of his Utah conviction to support removal. First, even if petitioner would concede that his conviction is now final, that would not answer the question whether the conviction was final at the time the IJ entered the removal order. Second, the Utah proceedings did not establish whether petitioner's Sixth Amendment rights were violated, because the Utah Court of Appeals affirmed the denial of relief solely on the ground that petitioner's motion to withdraw his guilty plea was untimely. See id. at *1. And in any event, under petitioner's theory, resolution of his challenge to his conviction by the state court—even on the merits—would not answer the question whether the IJ could rely on petitioner's conviction to support removal absent proof from the government that the conviction comported with the Sixth Amendment under Padilla.

We turn, then, to petitioner's arguments, beginning with the government's burden of proof. The government bears the burden of proving by clear and convincing evidence that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A). When removal is based on a criminal conviction, the government may prove the existence of the conviction through a variety of documents or records, including those the government relied on here. See 8 U.S.C. § 1229a(c)(3)(B); Admin. R. at 229–237 (containing the information, the amended information, and a certified copy of the minutes of sentencing and the judgment, sentence and commitment notice).

In determining whether a conviction supports removal, “[i]mmigration authorities must look solely to the judicial record of final conviction and may not make their own independent assessment of the validity of [the alien's] guilty plea.... As an administrative agency, the INS has no power to adjudicate the validity of state convictions underlying deportation proceedings.” Trench v. INS, 783 F.2d 181, 184 (10th Cir.1986) (internal quotation marks omitted). Accordingly, “an alien cannot collaterally attack the legitimacy of a state criminal conviction in a deportation proceeding.” Id.

In Trench, the alien challenged the validity of his conviction on the same ground petitioner does here: his counsel did not advise him properly about the risk of removal arising from his guilty plea. Id. at 183. We held that even if trial counsel's allegedly incorrect advice violated the Sixth Amendment (an issue on which the circuit courts were then divided), the alien could not challenge the validity of his conviction in the immigration proceedings; he had to bring his challenge in state court. Id. at 183–184. The Sixth Circuit recently considered a similar challenge based specifically on Padilla and held the alien's claim of ineffective assistance was “not a proper one in immigration proceedings.... [A]n alien petitioner may not collaterally attack a criminal conviction that serves as the basis for the [government's] initiation of removal proceedings against the alien ... on review from a decision of the BIA.” Garcia v. Holder, 638 F.3d 511, 518 (6th Cir.2011).

Petitioner himself acknowledges that an alien cannot attack the legitimacy of a state court conviction in immigration proceedings. See Pet'r Opening Br. at 20 n. 11. To circumvent this limitation, petitioner seeks to put the burden on the government to prove as part of its case that his conviction was constitutional under the Sixth Amendment. He contends that the Supreme Court's decision in Padilla requires this expansion of the government's burden.

At issue in Padilla was whether the state court properly...