## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 20 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SONNY (KILSON) ELKINS,

Petitioner - Appellant,

v. No. 03-1184 MICHAEL COMFORT, Acting District Director, United States Immigration and Naturalization Service, Denver, Colorado, in his official capacity; JOHN ASHCROFT, United States Attorney General, in his official capacity; and JAMES W. ZIGLAR, Commissioner, U.S. Immigration and Naturalization Service, in his official capacity,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 99-B-1113)

Marc Van Der Hout (Stacy Tolchin with him on the br iefs), of Van Der Hout, Brigagliano & Nightingale, San Francisco, Californi a, for Petitioner - Appellant. Papu Sandhu, Senior Litigation Counsel (Emily Anne Radford, Assistant Director, with him on the brief), Office of Immigration Litig ation, Civil Division, Department of Justice, Washington, D.C., for Respon dents - Appellees.1 The statute provides:

[A]ny alien convicted of, or who admits having comm itted, or who admits committing acts which constitute the essential elem ents of— . . .

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, ora foreign country relating to a controlled substance (as defined in s ection 802 of Title 21), is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(II). -2- Before HARTZ , McKAY , andO’BRIEN , Circuit Judges.

HARTZ , Circuit Judge.

An alien who has been paroled into the United State s may seek an adjustment of status under 8 U.S.C. § 1255(a) to av oid being removed from this country. Such adjustment is available, however, on ly to aliens who are “admissible” to the United States for permanent res idence. Id. One ground of inadmissibility is conviction of a controlled-subst ance offense under the laws of the United States, any State, or any foreign country. 8 U.S.C. § 1182(a)(2)(A)(i)(II). 1 As yet unresolved in this circuit is whether the Fe deral First Offender Act (FFOA), 18 U.S.C. § 3607, overrides § 1182. Under the FFOA a first-time offender of 21 U.S.C. § 844 (relating to possession of controlled substances) may be placed on probation for a year or less without e ntry of a judgment of2 In full, the statute provides: (a) Pre-judgment probation .—If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)—

(1) has not, prior to the commission of such offens e, been convicted of violating a Federal or State law relat ing to controlled substances; and (2) has not previously been the subject of a dispos ition under this subsection; the court may, with the consent of such person, pla ce him on probation for a term of not more than one year without entering ajudgment of conviction. At any time before the expiration of the term of pr obation, if the person has not violated a condition of his probation, the court may, without entering a judgment of conviction, dismiss the proceedings aga inst the person and discharge him from probation. At the expiration of the term of probation, if the person has not violated a condition of his p robation, the court shall, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. If th e person violates a condition of his probation, the court shall proceed in accordance with the provisions of section 3565. (b) Record of disposition .—A nonpublic record of a disposition under subsection (a), or a conviction that is the s ubject of an expungement order under subsection (c), shall be retained by th e Department of Justice solely for the purpose of use by the courts in dete rmining in any subsequent proceeding whether a person qualifies for the dispo sition provided in subsection (a) or the expungement provided in subse ction (c). A disposition under subsection (a), or a conviction t hat is the subject of an expungement order under subsection (c), shall not b e considered a (continued...) -3- conviction. If the offender successfully completes probation, the proceedings will be dismissed and the disposition “shall not be cons idered a conviction for the purpose of a disqualification or a disability impos ed by law upon conviction of a crime, or for any other purpose.” 18 U.S.C. § 3607 (b). 2 For this appeal we will2 (...continued)

conviction for the purpose of a disqualification ora disability imposed by law upon conviction of a crime, or for any other pu rpose. (c) Expungement of record of disposition .—If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) is the subject of a disposition under subsection (a), and the person was less than twenty -one years old at the time of the offense, the court shall enter an expun gement order upon the application of such person. The expungement order shall direct that there be expunged from all official records, except the n onpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, an d the results thereof. The effect of the order shall be to restore such pe rson, in the contemplation of the law, to the status he occupied before such a rrest or institution of criminal proceedings. A person concerning whom suc h an order has been entered shall not be held thereafter under any prov ision of law to be guilty of perjury, false swearing, or making a false state ment by reason of his failure to recite or acknowledge such arrests or in stitution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose. 18 U.S.C. § 3607. -4- assume that a disposition under the FFOA does not c onstitute a conviction for purposes of § 1182. Nevertheless, we hold that Petitioner Kilson Elkins cannot benefit from this assumption. Her marijuana convic tion was under Korean law, and her term of probation exceeded what is permissi ble under the FFOA. We reject Petitioner’s contention that Fifth Amendmentequal-protection principles require that she receive the benefits of an FFOA di sposition.
I. BACKGROUND3 On March 1, 2003 the INS ceased to exist, and its r esponsibilities were

divided among three distinct agencies formed within the new Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296 , §§ 441, 451, 116 Stat. 2135 (November 25, 2002). B ecause the actions Petitioner challenges in this appeal were taken prior to this reorganization, however, in this opinion we will refer to the relevant government ag ency as the INS. -5- On October 23, 1975, when Petitioner was 20 years o ld, she was convicted under a Korean narcotics law for possession of mari juana. Her eight-month sentence of imprisonment was suspended for two year s. After the two-year suspension her sentence “lapsed” under Korean law. Petitioner was paroled into the United States on April 17, 1987, while married to Carlos Flores, a United States citizen. In 1995, in short order, th e Immigration and Naturalization Service (INS) 3 commenced exclusion proceedings against Petitioner , she and Flores were divorced, she married Jay Elkins, also a United States citizen, and she petitioned for adjustment of status to lawful perma nent resident. In 1997 an immigration judge ordered Petitioner excluded from the United States and deported to South Korea. Her petition for adjustme nt of status was denied by the INS in 1999 because of her conviction. Petitioner then sought a writ of habeas corpus from the United States District Court for the District of Colorado, conten ding that she was eligible for adjustment of status despite her Korean conviction. We agree that this was the proper procedure to raise this contention. See I.N.S. v. St. Cyr, 533 U.S. 289,-6-

297, 299-300 308-14 (2001) (challenge to INS judgme nt holding alien ineligible for waiver of deportation was properly filed as hab eas claim in district court when petition to court of appeals was forbidden by statu te). Cf. Duran-Hernandez v. Ashcroft , 348 F.3d 1158, 1162, 1162 n. 3 (10th Cir. 2003) ( petition challenging INS order of removal, including reinstatement of or der of removal, properly filed in court of appeals when statute—8 U.S.C. § 1252(b) (2)—so directs).
II. DISCUSSION In district court Petitioner argued that Fifth Amen dment equal-protection principles require that the benefits of an FFOA dis position apply to her lapsed Korean conviction. The government countered that t he length of Petitioner’s probation, and the difficulty of obtaining informat ion about foreign convictions generally, provide a rational basis for distinguish ing Petitioner’s conviction from an FFOA disposition. The district court avoided the equal-protection iss ue by deciding that Petitioner was ineligible for adjustment of status on two alternative grounds: first, because the 1997 exclusion order against Pet itioner made her ineligible for adjustment of status, and second, because the marri age on which her application for adjustment of status was based took place afterexclusion proceedings against her had begun. Memorandum Opinion and Order (Feb. 14, 2003) at 6-8.-7-

The government does not defend the first of these g rounds on appeal. Although it does argue that the second ground was p roper, it also argues, as it did in district court, that Petitioner’s prior convicti on makes her ineligible for adjustment of status. Petitioner responds that we should not decide the priorconviction issue, but should remand it to the distr ict court for consideration there in the first instance. We have discretion to affirm on any ground adequate ly supported by the record. Stillman v. Teachers Ins. & Annuity Ass’n Coll. Re t. Equities Fund, 343 F.3d 1311, 1321 (10th Cir. 2003). In exercising th at discretion we consider whether the ground was fully briefed and argued her e and below, see Bennett v. Spear , 520 U.S. 154, 166-67 (1997); whether the parties have had a “fair opportunity to develop the [factual] record,” Seibert v. Okla. ex rel. Univ. of Okla. Health Sci. Ctr., 867 F.2d 591, 597 (10th Cir. 1989) abrogated on other grounds by Fed. Lands Legal Consort. ex rel . Robar t Estate v. United States , 195 F.3d 1190, 1195-96 (10th Cir. 1999); and whether, i n light of factual findings to which we defer or uncontested facts, our decision w ould involve only questions of law, see Stillman , 343 F.3d at 1321-22. Each of these considerations supports reaching the prior-conviction issue in this case: the issue was fully briefed and argued in district court, the issue was raised on appeal, the parties had ample4 Section 1101(a)48)(A) states: The term "conviction" means, with respect to an ali en, a formal judgment of guilt of the alien entered by a court o r, 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 contende re or has admitted sufficient facts to warrant a finding of guilt, and (continued...)

-8- opportunity to present relevant evidence, and there are no material factual disputes. We therefore address the prior-convictio n issue. Petitioner argues that the FFOA prevents the govern ment from treating dispositions under it as “convictions” for the purp ose of the immigration laws. If so, Petitioner argues, it would violate the Fifth A mendment for the government to treat differently convictions for the same conduct obtained and similarly expunged under foreign law. She argues that her cr iminal conduct, the two-year suspension of sentence, and the subsequent lapse of her conviction, are not constitutionally distinguishable from the conduct, probation, and dismissal treated as a nonconviction under the FFOA. The government contends that the definition of conviction in the immigration laws constitutes a congressional comman d that the treatment of a conviction not be affected, for immigration purpose s, by subsequent expungement. See 8 U.S.C. § 1101(a)(48)(A) (defining conviction). 4 But we4 (...continued) ( ii ) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

-9- need not decide whether this statutory definition o f conviction is overridden by the FFOA. Even if the FFOA applies in the immigrat ion context, the Fifth Amendment does not require its extension to Petitio ner’s foreign conviction. Petitioner does not dispute that the Fifth Amendmen t is satisfied if there is a rational basis for the law to treat her lapsed co nviction differently than it does an FFOA disposition. See Soskin v. Reinertson , 353 F.3d 1242, 1255-56 (10th Cir. 2004) (rational-basis review applied to equal- protection challenge to treatment of one class of aliens differently than o ther aliens). The government seizes on two distinctions between Petitioner and p ersons eligible under the FFOA. First, Petitioner’s conviction and the expun gement of that conviction were under Korean law, whereas the FFOA applies onl y to federal convictions. Second, Petitioner was subject to a two-year suspen sion of sentence, whereas dispositions under the FFOA are limited to “probati on for a term of not more than one year.” 18 U.S.C. § 3607(a). In our view, eith er ground provides a rational basis for denying Petitioner the benefits of the FF OA. The government’s greater familiarity with and contr ol over federal prosecution, conviction, and sentencing justifies d istinguishing FFOA-10-

dispositions, which are administered by federal pro secutors and federal judges under federal law, from otherwise similar foreign d ispositions. The government is entitled to have greater confidence about the me aning of an FFOA disposition than about the meaning of lenient foreign dispositi ons. Indeed, the prevailing view in other circuits is that there is a rational basis for distinguishing even statecourt dispositions from those under the FFOA. As J udge Alito wrote for the Third Circuit: Familiar with the operation of the federal criminal justice system, Congress could have thought that aliens whose feder al charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contra st, Congress may have been unfamiliar with the operation of state sc hemes that resemble the FFOA. Acosta v. Ashcroft , 341 F.3d 218, 227 (3d Cir. 2003); accord Madriz-Alvarado v. Ashcroft , 383 F.3d 321, 332-33 (5th Cir. 2004); Resendiz-Alcaraz v. United States Att’y Gen. , 383 F.3d 1262, 1272 (11th Cir. 2004). We recogni ze that the Ninth Circuit has a contrary view. See, e.g. , Lujan-Armendariz v. INS, 222 F.3d 728, 741-43 (9th Cir. 2000). But we note that even it m ay have rejected Petitioner’s claim; in treating an expunged United Kingdom convi ction as if it had been handed down under the FFOA, the court wrote that in quiring into the facts surrounding the petitioner’s conviction “presents n o greater obstacles to obtaining proper evidence than cases involving state expungem ents.” Dillingham v. INS,-11-

267 F.3d 996, 1008 n. 14 (9th Cir. 2001). The court may have found less transparent the Korean proceedings involved here. As for the second distinction, the government may r ationally draw inferences about the convict’s criminality from the duration of the probation imposed. Longer periods of probation are correlate d with worse conduct. See Madriz-Alvarado , 383 F.3d at 333; Vasquez-Velezmoro v. INS, 281 F.3d 693 at 697-98; Fernandez-Bernal v. Att’y Gen. of the United States , 257 F.3d 1304, 1316-17 (11th Cir. 2001). Because there is a rational basis for distinguishin g Petitioner’s lapsed Korean conviction from a disposition under the FFOA , Petitioner was not denied equal protection of the laws. We AFFIRM the judgme nt below.