Schultz v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 21, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SAM UEL SCH ULTZ,
Petitioner,
v. No. 06-9546
(No. A38-602-964)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
Samuel Schultz seeks review of a Board of Immigration Appeals (BIA)
decision that ordered him removed to India under 8 U.S.C. § 1227(a)(2)(A )(iii)
for being an alien convicted of an aggravated felony theft offense as defined by
8 U.S.C. § 1101(a)(43)(G). W e have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),
and w e deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
M r. Schultz is a native and citizen of India. He was born there in 1981, but
became a lawful permanent resident of the United States in 1985 when he was
adopted by an American citizen. He never applied for U.S. citizenship. In 2000,
M r. Schultz pleaded guilty to attempting to receive or transfer a stolen vehicle, an
offense classified as a felony under Utah law. Then in 2001, M r. Schultz pleaded
guilty to receiving a stolen motor vehicle, also a felony under U tah law.
Following these convictions, M r. Schultz received a Notice to Appear before an
Immigration Judge (IJ) to answer to charges of removal as an alien convicted of
an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). At his removal
hearing, M r. Schultz sought cancellation of removal, asylum, restriction on
removal, and protection under the Convention Against Torture (CAT). The IJ
denied all forms of relief and ordered M r. Schultz removed to India. M r. Schultz
appealed, and the BIA reversed.
The BIA found that the evidence relied upon by the government to prove
M r. Schultz’s convictions was not properly certified as required by 8 C.F.R.
§ 1003.41. Consequently, the BIA remanded the case to the IJ who, after the
government submitted new records of M r. Schultz’s convictions, again ordered
him removed. M r. Schultz appealed to the BIA a second time, arguing once again
that the newly admitted conviction records were also improperly certified. The
BIA rejected this argument, however, and affirmed the IJ’s removal order.
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M r. Schultz subsequently petitioned this court for review. In his petition,
he contends that: (1) the government failed to establish his removability because
the evidence of his convictions was not properly certified; (2) the crime of
receiving or transferring a stolen motor vehicle does not qualify as an aggravated
felony theft offense under § 1101(a)(43)(G ); and (3) the IJ erred in finding him
ineligible for asylum and cancellation of removal.
II. Discussion
Our threshold inquiry is w hether w e have jurisdiction to consider this
petition. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir. 2005)
(“W e must first address a threshold jurisdictional question before turning to the
merits.”). The REAL ID Act added 8 U.S.C. § 1252(a)(2)(D ) to provide us w ith
jurisdiction over constitutional claims or questions of law raised in a petition to
review a final order of removal. Diallo v. Gonzales, 447 F.3d 1274, 1281
(10th Cir. 2006). Here, M r. Schultz challenges his classification as an aggravated
felon by contending the convictions on which his status was based were not
properly certified under 8 U.S.C. §§ 1229a(c)(3)(B) and (C), or 8 C.F.R. §§ 287.6and 1003.41. This presents the legal question of whether M r. Schultz was
removable under § 1227(a)(2)(A )(iii), which we now have jurisdiction to
consider. Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir.
2006). W e therefore turn to the merits of the petition, reminded that we review
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the BIA ’s legal determinations de novo, Ferry v. Gonzales, 457 F.3d 1117, 1126
(10th Cir. 2006).
A. Certification of Conviction Records
M r. Schultz first claims that the conviction records upon which the IJ based
its removal order were not properly certified. These records were admitted as
Exhibits 6 and 7. Exhibit 6 is an eleven-page copy of a conviction record
indicating that M r. Schultz pleaded guilty to receiving or transferring a stolen
vehicle. Admin. R. at 263-73. Of the eleven pages, only pages one, two, and
eleven bear a seal from the U tah state court. The other exhibit, Exhibit 7, is a
two-page copy of M r. Schultz’s conviction record indicating that he pleaded
guilty to attempting to receive or transfer a stolen vehicle. Id. at 261-62. Both
pages of that document are affixed with a seal from the Utah court. Citing
8 U.S.C. §§ 1229a(c)(3)(B) and (C), and 8 C.F.R. §§ 287.6 and 1003.41,
M r. Schultz contends that to establish his removability for having been convicted
of an aggravated felony, the government must submit “either original documents
or records or certified copies of official documents or records.” 1 Aplt. Br. at 12.
Asserting that the government failed to provide such documents, M r. Schultz
concludes that the evidence against him was insufficient to sustain the agency’s
removal order.
1
Because there is no indication that the records w ere submitted by electronic
means, 8 U.S.C. § 1229a(c)(3)(C) is inapplicable.
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Initially, we note that contrary to M r. Schultz’s representations, he did not
challenge the admissibility of Exhibit 7 before the BIA. Indeed, as the BIA stated
in its decision, M r. Schultz “ma[de] no argument as to the authenticity or proper
certification of Exhibit 7.” Admin. R. at 3. Because he failed to raise this issue
before the BIA , it is abandoned and we cannot consider it. See Akinwunmi v. INS,
194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (“The failure to raise an issue
on appeal to the Board constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear
the matter.” (quotation omitted)). M oreover, as the BIA recognized,
M r. Schultz’s status as an aggravated felon was demonstrated by Exhibit 7, which
was sufficient to establish his removability.
Nonetheless, turning to Exhibit 6, we see that the first page is a copy of
M r. Schultz’s actual judgment and conviction. This record bears both a seal and
signed attestation that satisfy both regulations. See 8 C.F.R. § 287.6(a) (“an
official record . . . shall be evidenced . . . by a copy attested by the official having
legal custody of the record”); id., § 1003.41(b) (permitting the admission of
conviction records that comply with the requirements of § 287.6(a)). This page
also satisfies 8 U.S.C. § 1229a(c)(3)(B)(i), which provides that a certified copy of
an official record of judgment and conviction constitutes proof of a criminal
conviction. To the extent M r. Schultz suggests that each page of Exhibit 6 must
be certified, we note that the first, second, and last pages of the exhibit clearly
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bear a state district court seal. See Admin. R. at 263-64, 273. M oreover, the last
page also bears an inclusive attestation, signed and dated by the clerk of court,
certifying “that the foregoing is a true and correct copy of an original document.”
Id. at 273. Given these and the other authenticating marks throughout Exhibit 6,
we are satisfied that M r. Schultz’s conviction record was properly certified under
the requirements of 8 U.S.C. § 1229a(c)(3)(B), as well as 8 C.F.R. §§ 287.6 and
1003.41. Accordingly, we conclude that the agency’s reliance on both Exhibits 6
and 7 was proper.
B. Aggravated Felony
M r. Schultz next argues that the crime of receiving or transferring a stolen
motor vehicle does not qualify as an aggravated felony theft offense under
§ 1101(a)(43)(G). Our jurisdiction to consider this argument is foreclosed,
however, because M r. Schultz failed to raise the issue before the BIA and thereby
failed to exhaust his administrative remedies. See Akinwunmi, 194 F.3d at 1341.
In any event, our precedent contradicts M r. Schultz’s position. In United States v.
Vasquez-Flores, 265 F.3d 1122, 1124-25 (10th Cir. 2001), we expressly held that
the crime of receiving or transferring a stolen motor vehicle constitutes an
aggravated felony theft offense because, under Utah law, it entails a knowing
exercise of control over another’s property without consent. Although
Vasquez-Flores is a criminal case, its classification of this crime as an aggravated
felony was based on the phrase “theft offense” under § 1101(a)(43)(G), and the
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elements of the offense as defined by Utah law. See id. (examining and adopting
the reasoning of Hernandez-M ancilla v. INS, 246 F.3d 1002 (7th Cir. 2001)).
Hence, M r. Schultz’s contention is w ithout merit.
C. Ineligibility for Asylum and C ancellation of Removal
Lastly, M r. Schultz contends the IJ erred in finding him ineligible for
asylum and cancellation of removal. M aintaining that his convictions are not
qualifying aggravated felonies, M r. Schultz argues that his claims for asylum and
cancellation of removal ought to be allowed to proceed. But as we have already
held, the crime of receiving or transferring a stolen motor vehicle is an
aggravated felony theft offense under § 1101(a)(43)(G). W e therefore conclude
the IJ correctly determined that M r. Schultz was not eligible for either form of
relief. See 8 U.S.C. §§ 1229b(a)(3) and 1158(b)(2).
III. Conclusion
The petition for review is DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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