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

(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

. 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,

(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

(b)(4)(B); see, e.g., Shu Wen Sun v. BIA, 510

(2d Cir. 2007). We review underlying

11 questions of law and the application of law to fact de novo.

12 See Passi v. Mukasey,

(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

(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

(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

(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.,

(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,

,

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,

,

21 382 (B.I.A. 1986); cf. Ali v. Reno,

(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