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 briefs), of Van Der Hout,

Brigagliano & Nightingale, San Francisco, California, for Petitioner - Appellant.

Papu Sandhu, Senior Litigation Counsel (Emily Anne Radford, Assistant Director,

with him on the brief), Office of Immigration Litigation, Civil Division,

Department of Justice, Washington, D.C., for Respondents - Appellees.
1

 The statute provides:

[A]ny alien convicted of, or who admits having committed, or who admits

committing acts which constitute the essential elements of— . . .

(II) a violation of (or a conspiracy or attempt to violate) any

law or regulation of a State, the United States, or a foreign country

relating to a controlled substance (as defined in section 802 of Title

21),

is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(II).

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Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

An alien who has been paroled into the United States may seek an

adjustment of status under 8 U.S.C. § 1255(a) to avoid being removed from this

country. Such adjustment is available, however, only to aliens who are

“admissible” to the United States for permanent residence. Id. One ground of

inadmissibility is conviction of a controlled-substance 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 Federal 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 entry of a judgment of
2

 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 offense, been

convicted of violating a Federal or State law relating to controlled

substances; and

(2) has not previously been the subject of a disposition under

this subsection;

the court may, with the consent of such person, place him on probation for

a term of not more than one year without entering a judgment of conviction. 

At any time before the expiration of the term of probation, if the person has

not violated a condition of his probation, the court may, without entering a

judgment of conviction, dismiss the proceedings against 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 probation, the court shall,

without entering a judgment of conviction, dismiss the proceedings against

the person and discharge him from probation. If the 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 subject of an expungement

order under subsection (c), shall be retained by the Department of Justice

solely for the purpose of use by the courts in determining in any subsequent

proceeding whether a person qualifies for the disposition provided in

subsection (a) or the expungement provided in subsection (c). A

disposition under subsection (a), or a conviction that is the subject of an

expungement order under subsection (c), shall not be considered a

(continued...)

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conviction. If the offender successfully completes probation, the proceedings will

be dismissed and the disposition “shall not be considered a conviction for the

purpose of a disqualification or a disability imposed by law upon conviction of a

crime, or for any other purpose.” 18 U.S.C. § 3607(b).2

 For this appeal we will
2

(...continued)

conviction for the purpose of a disqualification or a disability imposed by

law upon conviction of a crime, or for any other purpose.

(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 expungement order upon the

application of such person. The expungement order shall direct that there

be expunged from all official records, except the nonpublic records referred

to in subsection (b), all references to his arrest for the offense, the

institution of criminal proceedings against him, and the results thereof. 

The effect of the order shall be to restore such person, in the contemplation

of the law, to the status he occupied before such arrest or institution of

criminal proceedings. A person concerning whom such an order has been

entered shall not be held thereafter under any provision of law to be guilty

of perjury, false swearing, or making a false statement by reason of his

failure to recite or acknowledge such arrests or institution of criminal

proceedings, or the results thereof, in response to an inquiry made of him

for any purpose.

18 U.S.C. § 3607.

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assume that a disposition under the FFOA does not constitute a conviction for

purposes of § 1182. Nevertheless, we hold that Petitioner Kilson Elkins cannot

benefit from this assumption. Her marijuana conviction was under Korean law,

and her term of probation exceeded what is permissible under the FFOA. We

reject Petitioner’s contention that Fifth Amendment equal-protection principles

require that she receive the benefits of an FFOA disposition.

I. BACKGROUND
3On March 1, 2003 the INS ceased to exist, and its responsibilities 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). Because the actions Petitioner

challenges in this appeal were taken prior to this reorganization, however, in this

opinion we will refer to the relevant government agency as the INS.

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On October 23, 1975, when Petitioner was 20 years old, she was convicted

under a Korean narcotics law for possession of marijuana. Her eight-month

sentence of imprisonment was suspended for two years. 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, the 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 permanent resident. In 1997 an

immigration judge ordered Petitioner excluded from the United States and

deported to South Korea. Her petition for adjustment 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, contending 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,
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297, 299-300 308-14 (2001) (challenge to INS judgment holding alien ineligible

for waiver of deportation was properly filed as habeas claim in district court when

petition to court of appeals was forbidden by statute). 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 order 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 Amendment equal-protection

principles require that the benefits of an FFOA disposition apply to her lapsed

Korean conviction. The government countered that the length of Petitioner’s

probation, and the difficulty of obtaining information about foreign convictions

generally, provide a rational basis for distinguishing Petitioner’s conviction from

an FFOA disposition. 

The district court avoided the equal-protection issue by deciding that

Petitioner was ineligible for adjustment of status on two alternative grounds: 

first, because the 1997 exclusion order against Petitioner made her ineligible for

adjustment of status, and second, because the marriage on which her application

for adjustment of status was based took place after exclusion 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 grounds on appeal. 

Although it does argue that the second ground was proper, it also argues, as it did

in district court, that Petitioner’s prior conviction makes her ineligible for

adjustment of status. Petitioner responds that we should not decide the priorconviction issue, but should remand it to the district court for consideration there

in the first instance. 

We have discretion to affirm on any ground adequately supported by the

record. Stillman v. Teachers Ins. & Annuity Ass’n Coll. Ret. Equities Fund, 343

F.3d 1311, 1321 (10th Cir. 2003). In exercising that discretion we consider

whether the ground was fully briefed and argued here 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 . Robart Estate v. United States, 195

F.3d 1190, 1195-96 (10th Cir. 1999); and whether, in light of factual findings to

which we defer or uncontested facts, our decision would 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 ample
4Section 1101(a)48)(A) states: 

The term "conviction" means, with respect to an alien, a formal

judgment of guilt of the alien entered by a court or, 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 contendere or

has admitted sufficient facts to warrant a finding of

guilt, and

(continued...)

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opportunity to present relevant evidence, and there are no material factual

disputes. We therefore address the prior-conviction issue. 

Petitioner argues that the FFOA prevents the government from treating

dispositions under it as “convictions” for the purpose of the immigration laws. If

so, Petitioner argues, it would violate the Fifth Amendment for the government to

treat differently convictions for the same conduct obtained and similarly

expunged under foreign law. She argues that her criminal 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 command that the treatment of a

conviction not be affected, for immigration purposes, by subsequent

expungement. See 8 U.S.C. § 1101(a)(48)(A) (defining conviction).4

 But we
4

(...continued)

(ii) the judge has ordered some form of punishment,

penalty, or restraint on the alien's liberty to be imposed. 

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need not decide whether this statutory definition of conviction is overridden by

the FFOA. Even if the FFOA applies in the immigration context, the Fifth

Amendment does not require its extension to Petitioner’s foreign conviction. 

Petitioner does not dispute that the Fifth Amendment is satisfied if there is

a rational basis for the law to treat her lapsed conviction 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 other aliens). The government

seizes on two distinctions between Petitioner and persons eligible under the

FFOA. First, Petitioner’s conviction and the expungement of that conviction

were under Korean law, whereas the FFOA applies only to federal convictions. 

Second, Petitioner was subject to a two-year suspension of sentence, whereas

dispositions under the FFOA are limited to “probation for a term of not more than

one year.” 18 U.S.C. § 3607(a). In our view, either ground provides a rational

basis for denying Petitioner the benefits of the FFOA. 

The government’s greater familiarity with and control over federal

prosecution, conviction, and sentencing justifies distinguishing FFOA
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dispositions, which are administered by federal prosecutors and federal judges

under federal law, from otherwise similar foreign dispositions. The government

is entitled to have greater confidence about the meaning of an FFOA disposition

than about the meaning of lenient foreign dispositions. 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 Judge Alito wrote for the

Third Circuit: 

Familiar with the operation of the federal criminal justice system,

Congress could have thought that aliens whose federal charges are

dismissed under the FFOA are unlikely to present a substantial threat

of committing subsequent serious crimes. By contrast, Congress may

have been unfamiliar with the operation of state schemes 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 recognize 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 may have rejected Petitioner’s

claim; in treating an expunged United Kingdom conviction as if it had been

handed down under the FFOA, the court wrote that inquiring into the facts

surrounding the petitioner’s conviction “presents no greater obstacles to obtaining

proper evidence than cases involving state expungements.” Dillingham v. INS,
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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 rationally draw

inferences about the convict’s criminality from the duration of the probation

imposed. Longer periods of probation are correlated 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 distinguishing Petitioner’s lapsed

Korean conviction from a disposition under the FFOA, Petitioner was not denied

equal protection of the laws. We AFFIRM the judgment below.