Roman v. Mukasey ( 2009 )


Menu:
  •      07-5629-ag
    Roman v. Mukasey
    1                         UNITED STATES COURT OF APPEALS
    2
    3                            FOR THE SECOND CIRCUIT
    4
    5                                August Term, 2008
    6
    7
    8   (Argued: October 3, 2008                 Decided: January 21, 2009)
    9
    10                             Docket No. 07-5629-ag
    11
    12   - - - - - - - - - - - - - - - - - - - -x
    13
    14   EDDY JOHNNY ROMAN,
    15
    16                  Petitioner,
    17
    18                  -v.-                                    07-5629-ag
    19
    20   MICHAEL B. MUKASEY, Attorney General
    21   of the United States,
    22
    23                  Respondent.
    24
    25   - - - - - - - - - - - - - - - - - - - -x
    26          Before:           JACOBS, Chief Judge, MINER and SOTOMAYOR,
    27                            Circuit Judges.
    28
    29          Petitioner Eddy Johnny Roman seeks review of a November
    30   21, 2007 order of the Board of Immigration Appeals affirming
    31   the May 17, 2006 decision of Immigration Judge Jeffrey S.
    32   Chase finding Roman inadmissible and ordering him removed to
    33   the Dominican Republic.         Roman argues, principally, that the
    34   Immigration Judge erred in relying on Roman’s admissions
    35   (through his lawyer) as evidence of a prior conviction
    36   establishing his removability.         The petition is denied.
    1                               ALAN MICHAEL STRAUSS (Stanley H.
    2                               Wallenstein, on the brief), New
    3                               York, New York, for Petitioner .
    4
    5                               GREGORY M. KELCH, Attorney, U.S.
    6                               Department of Justice (Gregory
    7                               G. Katsas, Acting Assistant
    8                               Attorney General; James E.
    9                               Grimes, Senior Litigation
    10                               Counsel, on the brief),
    11                               Washington, DC , for Respondent.
    12
    13   PER CURIAM:
    14
    15       Petitioner Eddy Johnny Roman, a native and citizen of
    16   the Dominican Republic and a lawful permanent resident of
    17   the United States, seeks review of a November 21, 2007 order
    18   of the Board of Immigration Appeals (“BIA”) affirming the
    19   May 17, 2006 decision of Immigration Judge (“IJ”) Jeffrey S.
    20   Chase finding Roman inadmissible and ordering him removed to
    21   the Dominican Republic.   In re Eddy Johnny Roman, No. A 40
    22   520 891 (B.I.A. November 21, 2007), aff’g No. A 40 520 891
    23   (Immig. Ct. N.Y. City May 17, 2006).   Roman argues that the
    24   IJ was prohibited, as a matter of law, from relying entirely
    25   on admissions made by Roman (through his lawyer) to
    26   establish his removability based on a prior conviction.     We
    27   conclude that this argument has no merit.   Accordingly, the
    28   petition is denied.
    29
    2
    1                                   I
    2         On or about January 10, 2004, Roman arrived at John F.
    3    Kennedy Airport in New York City and applied for admission
    4    as a returning lawful permanent resident.      The Department of
    5    Homeland Security (“DHS”) denied Roman admission.      On June
    6    5, 2004, DHS served Roman with a Notice to Appear (“NTA”)
    7    stating that he was inadmissible as an “arriving alien”
    8    because he had been convicted of the crime of attempted
    9    criminal sale of a controlled substance in the third degree
    10   in violation of Section 110/220.39 of the New York State
    11   Penal Law.    DHS charged Roman with removability under INA
    12   § 212(a)(2)(A)(i)(II), which states that “any alien
    13   convicted of, or who admits having committed, or who admits
    14   committing acts which constitute the essential elements of
    15   . . . a violation of . . . any law or regulation of a State
    16   . . . relating to a controlled substance” shall be
    17   inadmissible and ineligible for entry into the United
    18   States. 1   
    8 U.S.C. § 1182
    (a)(2)(A)(i)(II).
    19        Roman first appeared before an IJ on March 30, 2005.
    20   At that hearing, Roman’s attorney stated that “we admit
    1
    In the case of an alien not admitted to the United
    States, the alien is “removable” if he or she is
    inadmissible under 
    8 U.S.C. § 1182
    . See 8 U.S.C.
    § 1229a(e)(2)(A).
    3
    1    allegations one through three, and the basis for charge of
    2    removal.”   At Roman’s next appearance, on July 27, 2005, his
    3    attorney requested and was granted a six-month continuance
    4    to afford time to pursue a state court order vacating
    5    Roman’s conviction .
    6        When Roman next appeared before the IJ on January 25,
    7    2006, he explained that the motion to vacate his state
    8    conviction was still pending.       The IJ granted a continuance
    9    for Roman to research whether a ground for cancellation of
    10   removal existed.
    11       At Roman’s fourth (and final) appearance, on May 17,
    12   2006, Roman’s counsel explained that she had researched
    13   Roman’s attempted criminal sale conviction and concluded
    14   that it was an aggravated felony rendering Roman ineligible
    15   for relief from removal.   The IJ addressed Roman directly
    16   and explained that he was entering an order of removal based
    17   on Roman’s prior conviction, but that Roman could seek to
    18   reopen the deportation proceeding if the conviction was
    19   subsequently vacated.   Roman acknowledged the IJ’s statement
    20   without objection.
    21
    22
    4
    1                                    II
    2        When, as here, the BIA adopts the decision of the IJ
    3    and supplements the IJ’s decision, this Court reviews the
    4    decision of the IJ as supplemented by the BIA.       See Yan Chen
    5    v. Gonzales, 
    417 F.3d 268
    , 271 (2d Cir. 2005).       We review
    6    the agency’s factual findings under the substantial evidence
    7    standard, treating them as “conclusive unless any reasonable
    8    adjudicator would be compelled to conclude to the contrary.”
    9    
    8 U.S.C. § 1252
    (b)(4)(B); see, e.g., Shu Wen Sun v. BIA, 510
    
    10 F.3d 377
    , 379 (2d Cir. 2007).       We review underlying
    11   questions of law and the application of law to fact de novo.
    12   See Passi v. Mukasey, 
    535 F.3d 98
    , 101 (2d Cir. 2008).
    13       Because Roman has been convicted of a
    14   controlled-substance offense, we lack jurisdiction to review
    15   his petition, except to the extent he presents
    16   constitutional claims or questions of law.       See 8 U.S.C.
    17   § 1252(a)(2)(C)-(D); Xiao Ji Chen v. U.S. Dep’t of Justice,
    18   
    434 F.3d 144
    , 151 (2d Cir. 2006).       Roman raises one legal
    19   question: was the IJ prohibited from relying on Roman’s own
    20   admissions (through his attorney) as the sole evidence
    21   establishing removability based on a prior conviction?
    22
    5
    1        The actions of the IJ were explicitly authorized by
    2    
    8 C.F.R. § 1240.10
    (c), which provides (in relevant part):
    3             The immigration judge [presiding over a
    4             removal proceeding] shall require the
    5             respondent to plead to the notice to appear
    6             by stating whether he or she admits or
    7             denies the factual allegations and his or
    8             her   removability   under    the    charges
    9             contained therein.      If the respondent
    10             admits the factual allegations and admits
    11             his or her removability under the charges
    12             and the immigration judge is satisfied that
    13             no issues of law or fact remain, the
    14             immigration   judge  may   determine    that
    15             removability    as   charged     has    been
    16             established by the admissions of the
    17             respondent.
    18
    19   
    8 C.F.R. § 1240.10
    (c).    Roman does not argue that issues of
    20   fact or law remained that should have prevented the IJ from
    21   ruling.
    22       Roman argues that aliens and their attorneys are often
    23   confused about prior convictions and that the government
    24   should be required in all cases to submit evidence proving a
    25   conviction.   But Roman does not allege that the admissions
    26   were inaccurate or that the lawyer representing him before
    27   the IJ was ineffective.    We decline Roman’s invitation to
    28   hold that an alien’s admissions cannot constitute clear and
    29   convincing evidence of removability in a case in which
    30   removability is premised on a prior conviction.     See Singh
    31   v. U.S. Dep’t of Homeland Sec., 
    526 F.3d 72
    , 78 (2d Cir.
    32   2008) (“Because of [the petitioner’s] status as a permanent
    6
    1    resident, the government bears the burden of proof, which it
    2    could only meet by adducing clear, unequivocal, and
    3    convincing evidence that the facts alleged as grounds for
    4    deportation are true.” (quotation marks and citations
    5    omitted)); see also Barragan-Lopez v. Mukasey, 
    508 F.3d 899
    ,
    6    905 (9th Cir. 2007) (“Barragan-Lopez’s own admissions
    7    constitute clear, convincing, and unequivocal evidence, and
    8    therefore we conclude that the government met its
    9    evidentiary burden of demonstrating removability.”).
    10       The NTA prepared by DHS identified the date and nature
    11   of Roman’s state convictions, as well as the statutory basis
    12   for his removal.    There is no legal or constitutional error
    13   in the IJ and BIA’s determination that Roman’s admission of
    14   removability--which explicitly admitted the allegations in
    15   the NTA “and the basis for the charge of removal”--satisfied
    16   the government’s evidentiary burden.    “[W]hen an admission
    17   is made as a tactical decision by an attorney in a
    18   deportation proceeding, the admission is binding on his
    19   alien client and may be relied upon as evidence of
    20   deportability.”    Matter of Velasquez, 
    19 I. & N. Dec. 377
    ,
    21   382 (B.I.A. 1986); cf. Ali v. Reno, 
    22 F.3d 442
    , 446 (2d
    22   Cir. 1994) (alien bound by counsel’s admission that a timely
    23   answer had not been filed).
    24       For the foregoing reasons, the petition is denied.
    7