In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3188

MAURICIO ROSALES-PINEDA,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A44 117 426

____________

ARGUED APRIL 3, 2006—DECIDED JUNE 19, 2006

____________

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. Petitioner Mauricio RosalesPineda appeals from a final order of removal based on his

illegal entry into the United States. Rosales had two

prior convictions for theft that he failed to disclose on his

immigrant visa application. Rosales concedes that he is

deportable, but argues that the BIA erred in finding him

ineligible for discretionary relief on the basis of a prior

narcotics conviction that was reflected in a “rap sheet.”

However, we conclude that the BIA was entitled to rely on

the rap sheet and the related corroborating evidence

because it reasonably indicated that he had been convicted

of a drug offense. Therefore, we deny the petition for

review.
2 No. 05-3188

I. BACKGROUND

Rosales, a citizen of Mexico, entered the United States

in 1982 at the age of nineteen. In 1984, he was twice

convicted of theft in violation of California law. At some

point in 1985, Rosales moved to Indianapolis, where he

later married an American citizen. On the basis of his

marriage, Rosales filed an immigrant visa petition in 1993

and was granted permanent residency. Rosales failed to

disclose his two prior theft convictions in his petition;

instead, he checked a box indicating that he had never been

arrested or convicted of any crime.

In 2000, Rosales applied for naturalization. During the

background investigation for his naturalization application,

the Government uncovered his California theft convictions

and immediately initiated removal proceedings, pursuant

to the Immigration and Nationality Act (“INA”)

§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Prior to

Rosales’s removal hearing, the Government also discovered

evidence of a third conviction in the form of an FBI Identification Record, commonly referred to as a “rap sheet.” The

rap sheet indicated that Rosales, under the name “Alberto

Torres Sarajoza,” was convicted of a controlled substance

violation on May 30, 1985, and sentenced to ninety days’

imprisonment.

At his removal hearing, Rosales conceded that the theft

convictions constituted two separate crimes involving moral

turpitude and that he was deportable under 8 U.S.C.

§ 1227(a)(2)(A)(ii). Rosales also conceded that he was

inadmissible at the time he was granted permanent

residency, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), and

was deportable under 8 U.S.C. § 1227(a)(1)(A). However, he

argued that he was eligible for discretionary relief under 8

U.S.C. §§ 1182(h) and (i), which authorize the issuance of a

discretionary waiver for certain categories of inadmissible

aliens.
No. 05-3188 3

The Immigration Judge concluded that Rosales was not

eligible for a waiver of inadmissibility because of his

conviction for a drug-related offense. Although the IJ asked

both parties to produce court records of the drug conviction,

neither Rosales nor the Government was able to uncover

any. The Government submitted the FBI rap sheet as

evidence of the drug-related conviction. The rap sheet

accurately reflected the two theft convictions that Rosales

admitted, one of which was under the name “Miguel

Alvarez Torres.” At the hearing, Rosales also conceded that

he had used both “Miguel Alvarez Torres” and “Alberto

Torres Sarajoza” in the past as aliases. He denied, however,

that the drug conviction under the Sarajoza name was in

any way related to him. The Immigration Judge did not find

him to be credible, in part because of his admitted lies

in his 1993 residency petition. After the IJ denied Rosales’s

application for adjustment of status, he appealed to the

BIA, which affirmed the decision of the IJ and dismissed

Rosales’s appeal. He then filed his petition for review in

this court.

II. ANALYSIS

A. Jurisdiction

Generally, we do not have jurisdiction to review a final

order of removal based on an alien’s violation of a controlled

substances law (other than a single offense involving

possession for one’s own use of 30 grams or less of marijuana) or commission of a crime of moral turpitude. See 8

U.S.C. § 1252(a)(2)(C). We also do not generally have

jurisdiction to review the BIA’s decisions denying discretionary relief. See 8 U.S.C. § 1252(a)(2)(B); Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). But under the REAL

ID Act, Pub. L. No. 109-13, 119 Stat. 231, 310-11 (2005)

(codified at 8 U.S.C. § 1252(a)(2)(D)), this court has jurisdic-
4 No. 05-3188

tion to review all constitutional claims and questions of law

arising from deportation proceedings. See Ramos v. Gonzales, 414 F.3d 800, 802 (7th Cir. 2005).

“When the board writes an opinion, the opinion becomes

the basis for judicial review of the decision of which the

alien is complaining.” Niam v. Ashcroft, 354 F.3d 652, 655

(7th Cir. 2004). The Government argues that this court is

without jurisdiction to adjudicate Rosales’s petition because

the petition raises no question of law—it contends that the

BIA’s decision was purely discretionary and is thus

unreviewable in this court. We disagree. The BIA concluded

that Rosales was statutorily ineligible for discretionary

relief as a result of his drug conviction. The BIA opinion

stated, “The issue then is whether or not the respondent

has demonstrated that he is not removable for a controlled

substance violation and remains eligible for a waiver of

inadmissibility under section 212(h) of the Act.”

Rosales argues that the BIA’s conclusions constituted

legal error because the reliance on the rap sheet as proof of

his drug conviction conflicted with the explicit language of

8 U.S.C. § 1229a(c)(3)(B), which describes the types of

evidence an immigration judge can rely upon as proof of

a conviction. The question of whether the IJ’s reliance on

the rap sheet was appropriate is a pure question of law, and

this court has jurisdiction to review Rosales’s petition.
No. 05-3188 5

B. The BIA’s Reliance on the FBI Identification

Record

The BIA’s conclusion that Rosales was ineligible for the

discretionary relief he sought rested entirely on its finding

that he had been convicted of a drug offense. Rosales

does not challenge the BIA’s conclusion that 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) bars him from eligibility for a waiver

of inadmissibility if he was convicted of the drug offense

in question. What he challenges is the BIA’s conclusion that

he was convicted of a drug offense. More specifically, he

challenges the method of proof relied upon by the BIA.

The INA, which lists specific documents that can be used

as proof of a conviction in removal proceedings, states:

In any proceeding under this chapter, any of the

following documents or records (or a certified copy of

such an official document or record) shall constitute

proof of a criminal conviction:

(i) An official record of judgment and conviction.

(ii) An official record of plea, verdict, and sentence.

(iii) A docket entry from court records that indicates the

existence of the conviction.

(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice

of the existence of the conviction.

(v) An abstract of a record of conviction prepared by the

court in which the conviction was entered, or by a State

official associated with the State’s repository of criminal

justice records, that indicates the charge or section of

law violated, the disposition of the case, the existence

and date of conviction, and the sentence.

(vi) Any document or record prepared by, or under the

direction of, the court in which the conviction was

entered that indicates the existence of a conviction.
6 No. 05-3188

(vii) Any document or record attesting to the conviction

that is maintained by an official of a State or Federal

penal institution, which is the basis for that institution’s authority to assume custody of the individual

named in the record.

8 U.S.C. § 1229a(c)(3)(B). It is clear that an FBI Identification Record is neither explicitly nor implicitly included

in Section 1229a(c)(3)(B)’s list. A roughly equivalent,

though slightly narrower, list is included in the Attorney

General’s regulations at 8 C.F.R. § 1003.41(a) and that

regulation also does not identify rap sheets.

However, 8 C.F.R. § 1003.41(d) greatly expands the range

of documents that may be used as proof of a conviction by

authorizing the consideration of “[a]ny other evidence that

reasonably indicates the existence of a criminal conviction.”

As the Second Circuit recently observed, the Supreme

Court’s instruction of deference to agency regulations

requires us, under these circumstances, to view the list in

8 U.S.C. § 1229a(c)(3)(B) as not exhaustive. See Francis v.

Gonzales, 442 F.3d 131, 142 (2d Cir. 2006) (citing Chevron

USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

843 (1984)) (“It seems to us to be reasonable enough for the

Attorney General to read the statute as a list of what

documents constitute conclusive proof of conviction, as it

says, but not as a prohibition on admitting other types of

documents.”); see also Fequiere v. Ashcroft, 279 F.3d 1325,

1327 (11th Cir. 2002) (concluding that the list in Section

1229a(c)(3)(B) is not exhaustive).

The question that we are left with, then, is whether the

FBI Identification Record used in this case “reasonably

indicate[d] the existence of a criminal conviction,” pursuant

to 8 C.F.R. § 1003.41(d). In Francis, the Second Circuit

concluded that a Jamaican police report was insufficient to

prove the existence of a conviction for the purpose of

establishing the petitioner’s deportability. Francis, 442 F.3d
No. 05-3188 7

at 144. But the ultimate inquiry in Francis was different

than the inquiry here—the question in that case was

whether the petitioner was deportable. Here, Rosales

concedes that he is deportable; the only question is whether

a drug conviction barred him from discretionary relief. This

distinction is significant because, after concluding that the

Jamaican police report was admissible, the Second Circuit

went on to assess the sufficiency of the report in the context

of the requirement that eligibility for deportation be

established by “clear, convincing, and unequivocal evidence.” See id. at 138, 144 (citing Berenyi v. Immigration

Dir., 385 U.S. 630, 636-37 (1967) (“When the Government

seeks to strip a person of citizenship already acquired, or

deport a resident alien and send him from our shores, it

carries the heavy burden of proving its case by ‘clear,

unequivocal, and convincing evidence.’ ”)). The Second

Circuit merged the inquiry of whether the rap sheet

reasonably indicated a conviction into its analysis of

whether the rap sheet was sufficient evidence to support

the petitioner’s deportability.

Here, because Rosales concedes that the Government is

entitled to deport him, we need not determine whether the

FBI Identification Record constituted clear and convincing

evidence of a criminal conviction for a drug offense. We

need only determine whether it “reasonably indicated the

existence of a criminal conviction.”

In this case, the FBI Identification Record reasonably

indicated that Rosales had been convicted of a drug related offense. As the BIA observed, the FBI Identification

Record accurately reflected the theft convictions that

Rosales admitted and the alias he admitted to using in one

of his theft convictions. The location of the drug conviction

was Los Angeles County, the same location where Rosales

committed the theft offenses and the area in which he lived

until some point in 1985. The temporal connection between
8 No. 05-3188

the drug conviction and the admitted theft convictions also

bolsters the reasonableness of reliance on the rap sheet.

The alleged drug conviction occurred in 1985, a year in

which Rosales admits he lived in the area, and it occurred

shortly after the other criminal activity Rosales admits.

Most damaging to Rosales’s case, the FBI Identification

Record identifies him as having been convicted under the

name “Alberto Torres Sarajoza,” and Rosales admitted at

his hearing that he had used that alias in the past. This is

not a very common name. Cf. Peaceable Planet Inc. v. Ty

Inc., 362 F.3d 986, 990 (7th Cir. 2004) (observing that the

name “Niles” is “not a very common name” in trademark

infringement suit involving identically-named “Beanie

Baby” and competing stuffed animal). Given these circumstances, we cannot find legal error in the BIA’s decision to

rely on the FBI rap sheet as proof that Rosales had been

convicted of a drug offense.

Although we uphold the use of the FBI rap sheet in this

case, we do not find that rap sheets will always constitute

sufficient evidence of a conviction to bar discretionary relief.

There are certainly situations where a rap sheet would

likely not meet the described burden. For example, a rap

sheet from a foreign jurisdiction would necessarily

be subject to more intense scrutiny than one with a domestic origin, as indicated by the Second Circuit. See Francis,

442 F.3d at 143 (“[e]ven if we were to credit a domestic rap

sheet, moreover, a report from a foreign police department

is even less reliable”). Even a domestic rap sheet would

likely be insufficient in the absence of corroborating

circumstances like those present in this case. But here, the

FBI Identification Record reasonably indicated that Rosales

had been convicted of a drug related offense, and thus, as

the BIA concluded, Rosales was statutorily ineligible for the

discretionary relief he sought below.
No. 05-3188 9

III. CONCLUSION

The petition for review is DENIED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-19-06