Wellington v. Holder

• Decision Date: 20 October 2010
• Docket Number: Docket No. 09-4111-ag.
• Citation: 623 F.3d 115
• Parties: Maxine Elizabeth WELLINGTON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

623 F.3d 115

Maxine Elizabeth WELLINGTON, Petitioner,

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

Docket No. 09-4111-ag.

United States Court of Appeals,Second Circuit.

Submitted: Sept. 27, 2010.

Decided: Oct. 20, 2010.

Eric W. Schultz, Hiscock & Barclay, LLP, Buffalo, NY, for petitioner.

Hillel R. Smith, Trial Attorney (Tony West, Assistant Attorney General, and Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, on the brief), Washington, D.C., for respondent.

Before: WALKER, CABRANES, Circuit Judges, and SCHEINDLIN, District Judge. ^*

PER CURIAM:

Maxine Elizabeth Wellington (“petitioner” or “Wellington”) petitions for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”) on September 14, 2009. Wellington argues that the BIA erred in finding her “convicted” of an offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II) ¹ and ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). ² She claims that she has not been “convicted” within the meaning of § 1182(a)(2)(A)(i)(II) because she received a Certificate of Relief from Disabilities (“Certificate of Relief”) from the New York court with jurisdiction over her 1995 conviction for drug possession, and because she would have qualified for relief under the Federal First Offender Act had she been prosecuted in federal court. Wellington also argues that the BIA erred in declining to address the question of whether she had accrued 10 years of continuous physical presence for purposes of cancellation of removal under § 1229b(b)(1).

We hold that Wellington was “convicted” of an offense under § 1182(a)(2)(A)(i)(II). Accordingly, we affirm the BIA's decision dismissing her appeal from a denial of an application for cancellation of removal. Because Wellington is ineligible for cancellation of removal on the basis of her criminal offense, we, like the BIA, need not reach the question of whether she has accrued 10 years of continuous physical presence sufficient to satisfy § 1229b(b)(1)(A).

BACKGROUND

Wellington is a citizen of Jamaica who entered the United States without inspection on or about January 23, 1981. On June 21, 1986, she married Steven Wellington, a United States citizen, and on October 29, 1989, she was granted temporary resident status under 8 U.S.C. § 1255a. On May 23, 1995, Wellington was convicted in New York state court of criminal possession of a controlled substance in the seventh degree (cocaine), under N.Y. Penal Law § 220.03, and sentenced to 120 days in jail. On May 13, 1996, the Immigration and Naturalization Service (“INS”) sent her an order terminating her temporary resident status because of her drug conviction. See 8 U.S.C. § 1255a(b)(2)(B) (providing that the Attorney General shall terminate temporary resident status if an alien commits an act that renders her inadmissible to the United States as an immigrant).

On February 15, 2007, Wellington was arrested and charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i) ³ as an alien who was unlawfully present in the United States without being admitted or paroled. Wellington was also charged with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a controlled substance offense (predicated on her 1995 cocaine conviction). See note 1, ante.

On March 11, 2008, Wellington appeared before an immigration judge (“IJ”) and conceded that she was removable based on her unlawful presence. She disputed, however, that she was removable based on her criminal conviction, or that her conviction would bar her from cancellation of removal under 8 U.S.C. § 1229b(b)(1). Wellington explained to the IJ that she intended to file a motion in state court to vacate her conviction. The IJ continued the case, and Wellington subsequently filed her application for cancellation of removal based on “exceptional and extremely unusual hardship” to her citizen spouse. Id.

On March 31, 2008, while her removal proceedings were pending, Wellington filed a motion to vacate her controlled substance conviction in New York state court because she had not received effective assistance of counsel during the prior criminal proceedings. In the alternative, Wellington requested vacatur in light of the likely immigration consequences of her conviction and the evidence of her rehabilitation since the offense. On June 27, 2008, the New York state court denied Wellington's motion to vacate the conviction, finding that the record did not demonstrate ineffective assistance of counsel under federal or state constitutional standards. However, the court issued a Certificate of Relief from Disabilities arising out of the conviction, which it believed was warranted for rehabilitative and immigration purposes.

On December 3, 2008, Wellington appeared before the IJ for a final hearing. She argued that she was statutorily eligible for cancellation of removal. She asserted that the Certificate of Relief in state court barred her prior conviction from being used as a basis for removal or as a means of precluding her from cancellation of removal. In support of her argument, Wellington relied, inter alia, on our decision in Rehman v. INS, 544 F.2d 71 (2d Cir.1976), which held that an alien who received a Certificate of Relief for a state conviction of drug possession was not “convicted” for immigration purposes if full expungement of a federal conviction would have been available for an analogous prosecution in federal court. Wellington also argued that she had satisfied the continuous physical presence requirement for cancellation of removal. See § 1229b(b)(1)(A), note 2, ante.

At the December 3, 2008 hearing, the IJ held that Rehman was not controlling law. He noted that, since Rehman was decided, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) had been passed and the INA had been amended to include a statutory definition of “conviction.” IIRIRA, Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-628 (1996) (codified at 8 U.S.C. § 1101(a)(48)(A)). Pursuant to this new definition of “conviction,” the BIA had held in Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), that no effect was to be given to a state rehabilitative action such as an expungement or Certificate of Relief, unless the state court action was related to a substantive or procedural defect in the underlying criminal proceeding. Matter of Roldan, 22 I. & N. Dec. at 523. Accordingly, the IJ determined that Wellington's controlled substance conviction subjected her to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and rendered her ineligible for cancellation of removal.

On September 14, 2009, the BIA affirmed the IJ's finding that Wellington was removable and that she was ineligible for cancellation of removal. The BIA substantially agreed with the IJ's analysis of the legal consequences of Wellington's drug conviction. This petition for review followed.

DISCUSSION

An alien's claim that she has not been “convicted” under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and that she remains eligible for cancellation of removal presents a question of law, which we review de novo. See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008). But “when our jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and when the intent of Congress is unclear and the agency's interpretation is reasonable,” we defer to the BIA in accordance with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). James v. Mukasey, 522 F.3d 250, 253-54 (2d Cir.2008) (quotation marks omitted).

In the circumstances presented here, we review the IJ's decision as supplemented by that of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (“Where the BIA adopts the decision of the IJ and merely supplements the IJ's decision ... we review the decision of the IJ as supplemented by the BIA.”).

A.

Wellington challenges the BIA's holding that she has been convicted of a “violation of ... a State [law] ... relating to a controlled substance,” 8 U.S.C. § 1182(a)(2)(A)(i)(II), because she received a Certificate of Relief for her 1995 conviction for drug possession. The term “conviction” is defined by 8 U.S.C. § 1101(a)(48)(A), which provides:

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.

INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). This statutory definition was enacted in 1996 as part of IIRIRA. In Saleh v. Gonzales, 495 F.3d 17 (2d Cir.2007), and Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir.2001), we held that the BIA had reasonably concluded that an alien remains “convicted” of a removable offense under § 1101(a)(48)(A) even when the conviction is vacated or accorded other rehabilitative treatment under state law. Saleh, 495 F.3d at 21-25; Mugalli, 258 F.3d at 61-62. Wellington now argues that the BIA erred when it failed to recognize an exception to this general rule which purportedly arises as a result of the provisions of the Federal First Offender Act of 1970 (“FFOA”). 18 U.S.C. § 3607.

Under the FFOA, a first-time offender who has been found guilty of an offense under the Controlled Substances Act, 21 U.S.C. § 844, may be ordered, at the discretion of the federal trial court, to serve “probation for a term of not more than one year without [the court's] entering a judgment of conviction.” 18 U.S.C. § 3607(a)(2). Upon the offender's successful completion of probation, the court may dismiss the proceedings, and...