05-5909

Saleh v. Gonzales UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4

------------- 5 6 August Term 2006 7 8 Argued: (April 30, 2007 Decided: July 17, 2007 9 Amended: August 3, 2007) 10 11 Docket No. 05-5909-ag 12 13 --------------------------------------------------X 14 15 YASSER NASSER SALEH, 16 17 Petitioner, 18 19 - against - 20 21 ALBERTO GONZALES, Attorney General of the United States, 22 23 Respondent. 24 25 --------------------------------------------------X 26 27 Before: FEINBERG, SOTOMAYOR, and HALL, Circuit Judges. 28 29 Petitioner seeks review of a decision of the Board of 30 Immigration Appeals affirming decisions of the Immigration Judge 31 denyinghis motion to terminate removal proceedings, finding him 32 removable, and denying his application for relief. 33 34 Petition for review denied. 35 36 ERIC W. SCHULTZ, Sacks, Kolken & Schultz, 37 Buffalo, New York, for Petitioner. 38 39 SHANE CARGO, Assistant Unite dStates Attorney, 40 (Michael J. Garcia, United States Attor n ey, 41 Sara L. Shudofsky, Assistant United States 42 Attorney, on the br i ef), United States 43 Attorney’s Offic e for the Southern District 44 of New York, for Respondent. 45 46 47-2-

FEINBERG, Circuit Judge: 1 Yasser Nasser S aleh, a lawful permanent resident of the 2 UnitedStates, was c harg ed as removable under section 3 237(a)(2)(A)(i) of the Immigration and NationalityAct (“INA”), 4 8 U.S.C. § 1227(a)(2)(A)(i). The basis of the charge was h is 5 conviction in state court of receiving stolen property, which is 6

a removable of fense, i.e., a “crime involving moral turpitude” 7 (“CIMT”) for which a sentence of one year or longer could have 8 be en imposed. In an effort to escape the adverse immigr atio n 9 consequences of that conviction, Saleh thereafter obtained an 10 amendment of the judgment so that he instead stood convicted of 11 petty theft, which is not a removable offense. 12 In this petition, Saleh seeks review of the decision of the 13 Boardof Immigration Appeals (“BIA”) affirming decisions of the 14 Immigration Judge (“IJ”) (A) rejecting Saleh’s argument that he 15

no longer stands convicted of a removable offense and therefore 16 denyinghis motion to terminate his removal proceedings and (B) 17 findingSaleh removable as charged and denying his application 18 for relief from removal. In re Saleh, No. A41 982 4 14 (B. I.A. 19 Oct. 4, 2005), aff’g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22, 20 2004). 21 In reviewingthese decisions, the principal question before 22

us is whether the BIA erred in concluding that Saleh rem ain s 23 “convict ed” o f a removable offense for federal immigration 241 The statute provides, in pertinent part, th at “ [e]very

person who buys or receives any property that has been stolen or that has been obtained in any manner constituti ng the ft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for no t m ore than one year.” Cal. Pen. Code § 496(a) . S aleh was convicted under section 496.1 of the California Penal Code. That provision has since been recodified as section 496(a). Throughout, this opinion references the provision at i ts c urrent location in section 496(a). -3- purposes even though the state court amended its judgment of 1 conviction to effectively expunge his conviction of a removable 2 offense under state law. For the reasons set forth b elow, we 3 hold that the BIA did not err because the amendment was secured 4 solelyto aid Saleh in avoiding immigration consequences and was 5 not based on any procedural or substantive defect in the original 6 conviction. We therefore deny the petition. 7 I. BACKGROUND 8 Saleh, a native and citizen of Yem en, was admitted to the 9 UnitedStates as a lawful permanent resident in 1990. In 1993, 10 Saleh was convicted in California state court, following his 11 plea of nolo c on tendere, of receiving stolen property in 12 violation of section 496(a) of the California Penal Code. 1 The 13 offense carries a maximum sentence of one-year imprisonment, see 14 Cal. Pen. C ode § 496(a), although the court imposed a lower 152 This was neither Saleh’s first nor last brush with the

law. He had already been convicted in 1992 of unlawfully discharginga firearm and driving while intoxicated, and was thereaf ter co nvicted in 1997 of criminal mischief, in 1998 of drivingwhile intoxicated, and in 200 0 of driving while intoxicated.

3 On March 1, 2003, the INS was rec onstituted into two agencies, the Bureau of Immigration andCustoms Enforcement and the U.S. Citizenship and Immigration Services, both within the Departme nt of Homeland Security. See Jian Hui Shao v. Bd. of Immigration Appeals , 4 65 F.3d 497, 499 n.3 (2d Cir. 2006) Because the proceedings in this case began before that date, we will continue to refer to the agency as the “INS.” -4- sentence. 2 In July 2001, the Immigrat ion and Naturalization 1 Service (“INS”) commenced removal proceedings, 3 charging that 2 Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his 3 1993 crime qualifies as a CIMT, committedwithin 10 years after 4 the date of admission, for which a sentence of one year or longer 5 could have been imposed. 6 Subsequently, for the announced purpose of escaping adverse 7 immigration consequences, Saleh moved in California state court 8 for an amendment of the judgment convicting him of receiving 9 stolen property, effective nunc pro tunc, so that he would 10 insteadstand con victed of petty theft in violation of section 11 488 of the California Penal Code. Because this is not a crime 12 for which a sentence of one year or longe r could have been 13 imposed, it is not a removabl e offe nse. In a declaration 14

ac com panyingSaleh’s motion, his counsel expressly referred to 15 the immigration consequences of Saleh’s original conviction, 164 Altho ugh th e Government bears the burden of proving, by

cl ear and convincing evidence, that Saleh is removable, see 8 U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2dCir. 2006) (per curiam); see also Pickering v. Gonzales, 465 F.3d263, 2 68-69 (6th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005), Saleh did not dispute before the IJ or the BIA or in his brief in this a p peal that the California court amended the judgment of conviction to help him avoidimmigration hardships, so we deem any argument to the contrary waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005). -5- stating that “the alternative disposition of petty theft, which 1 carries a six month maximumsentence would not have the adverse 2 immigration consequences.” Moreover, no evidence or argument 3 presentedto that court identifiedany substantive or procedural 4 defects in Saleh’s conviction. The California court granted the 5 motion. 6 Saleh thereafter asked the IJ to termi na te the agency’s 7 removal proceedings, arguing that petty theft is not a removable 8 offense. The IJ denied the motion, reasoning that, despite the 9 California court’s amendment to the judgment of conviction, Saleh 10

rem ained“convicted” of receiving stolen property, a removable 11 offense for federal immigration purposes, because the amendment 12

was not “basedon any showing of innocence or any suggestion that 13 the conviction had bee n i mproperly obtained.” Instead, the IJ 14 foundthat the conviction was amended “solely for the purpose of 15 circumventing the immigration laws of the United States.” 4 16 After the IJ denied Saleh’s motion to terminate his removal 17 proceedings and the BIA declined to entertain his interlocutory 185 Saleh a band oned his 212(c) application because, after

filingthe Form I-191, his counsel determined tha t S aleh had also been convicted of a firearms offense, see supra note 2, which rendered him ineligible for 212(c) relief. -6- appeal of that decision, Saleh contested removability and sought 1 relief from removal. He initially fileda For m I-191, a 2 prerequisite to obtainin g a waiver of deportation under former 3 section 212(c) of th e INA. Subsequently, however, Saleh 4 abandonedhis application for 212(c) relief andinstead filed a 5 motion to substitute an application for cancellation of removal. 5 6 The IJ found Saleh remo vab le and denied his application for 7 cancellation of removal as untimely. 8 The BIAadopted and affirmed the IJ’s decision and dismissed 9 the appeal. Relyingon it s prior decision in Matter of 10 Pickering, 23 I. & N. Dec. 621 (BIA 2003), the Boardagreed with 11 the IJ that Saleh remained “convicted” of a removable offense for 12 federal immigration purposes be cause the amendment of the 13 judgment of conviction was not based on “any s ubs tantive or 14 procedural defect in the underlying criminal proce edi ngs,” and 15 Saleh was therefore removable. Saleh filed a timelypetition for 16 review. 17 II. ANALYSIS 18 In his petition, Saleh argues that the BIA erred in finding 19 himremovable and in denying his application for cancellation of 20 removal. In support, he argues princi pally that (A) the BIA’s 21-7-

interpretation of the INA, under which he remains convictedof a 1 removable offens e, (1) is not entitled to deference under 2 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 3 467 U.S. 8 37 (1984) and (2) violates 28 U.S.C. § 1738, which 4 obliges feder al courts to give full faith and credit to state 5 acts, records, a nd judicial proceedings; and (B) the BIA 6 erroneouslyconcluded that he was ineligible for cancellation of 7 removal. We reject each of his arguments. 8 A. Di dthe BIA err in concluding that Saleh remains 9 convictedof a removable offense for federal 10 immigration purposes? 11 1. Is the BIA’s interpreta ti on of the INA at issue 12 in this case entitledto deference under Chevron ? 13 14 The BIA determined that Saleh was removable pursuant to 8 15 U .S.C. § 1227(a)(2)(A)(i), which makes removable any alien w h o 16 “(I) is convicted of a crime involving moral turpitude committed 17 within five years (or 10 years in the case of an alien provided 18 l awful permanent resident status . . .) after the date of 19 admission, and (II) is convicted of a crime for which a sentence 20 of one y ear or l onger may be imposed.” The BIA properly 21 concludedthat Saleh’s original conviction for receiving stolen 22 property , in v iolation of Cal. Pen. Code § 496(a), satisfies 23 these r equir ements. See Michel v. INS, 206 F.3d 253, 263 (2d 24 Cir. 2000). Although Saleh thus stoodconvicted of a removable 25 offense under state law at one time, he subsequently secured an 26 amendment of the State’s judgment in an effort to avoid adverse 276 That provision defines “conviction” as [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 (ii) the judge has ordered some formof punishment, pena lty, o r restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A). -8- immigration consequences and not because of any proc edural or 1

su bstantive defect in the original conviction. Therefore, the 2 issue before us is whether, under th es e circumstances, Saleh 3 remains “convicted” of a removable offense for federal 4 immigration purposes, viz. within th e m eaning of 8 U.S.C. § 5 1227(a)(2)(A)(i) and the INA’s d efin ition of “conviction,” 8 6 U.S.C. § 1101(a)(48)(A). 6 7 This is a question of federal statutory interpretation. We 8 have previously observed that “[w]hether one has been ‘convicted’ 9 within the language of [federal] statutes is necessarily . . . a 10 question of federal, not sta te, la w, despite the fact that the 11 p redicate offense and its punishment are defined by the law o f 12 the State.” United States v. Campbell, 167 F.3d 94, 97 (2d Cir. 13 1999) (alternations in original, citation omitted); cf. Dickerson 14

v. New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983) (holding 15 that in “the absence of a plain indication to the contrary, . . 16

. it is to be assumed when Congress enacts a statute that it does 17-9-

not intend to make its application dependent on state law” 1 (alterations in original, citation omitted)). 2 We revi ew the BIA’s interpretation of the INA under the 3 familiar two-step analysis set forth in Chevron, 467 U. S. 837. 4 See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). First, 5

we d et ermine whether the provision in question is ambiguous; 6

“ [i]f the intent of Congress is clear, that is the end of th e 7 matter; for the court, as well as the agency, must give effect to 8 the un am biguously expressed intent of Congress.” Chevron, 467 9 U.S. at 842-43. If, however, “the statute is silent or ambiguous 10 with respect to the specific issue, the question for the court is 11 whether the agency’s answer is based o n a pe rmissible 12

cons truction of the statute,” and thus entitled to deferen ce . 13 Id. at 843. 14 Turningto the first step of this analysis, we conclude that 15 Congress’ intent on the treatment of va cated or amended 16 convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous. Saleh 17

was deemed removable because, inter alia, he is an alien who “is 18 convictedof a crime involving moral turpitude,” 8 U.S.C. § 19 1227(a)(2)(A)(i), and conviction is defined, in pertinent part, 20

as “a formal judgment of guilt of the alien entered by a court,” 21 8 U.S.C. § 1101(a)(48)(A). This language permits a spectrum of 22 possible interpretations. On one endof the spectrum, Congress 23 mayhave intended that where an alien receives any type of post- 24-10-

conviction relief -- either through an amendment nunc pro tunc, 1

an expungement, or some other remedy -- the immigration law 2 shouldtreat the conviction as if it never occurred, regardless 3 of the reason for the relief. Under this view, the expungement 4

means that th e defendant no longer “is convicted of [the 5 original] crime” and there is no longer any “formal judgment of 6 guilt of the alien enteredby a court.” On the other end of the 7 spectrum, Co ngre ss may have intended that no post-conviction 8 relief whatsoever should have any effect on wh ether an alien 9 stands “convicted” of a removable offense, again, regardless of 10 the reason for the relief. Or, Congress may have intended some 11 middle position: that certain types of post-conviction relief 12 wouldaffect an alien’s “conviction” status under the IN A, but 13 others would not, depending upon the reason for th e r elief. 14 Neither the relevant statutory language nor legislative history 15 allow s us to conclude that any of these interpretatio n s 16 represents Co ngress ’ unambiguous intent. See, e.g., Pinho v. 17 Gonzales, 432 F.3d 193, 206 (3d Cir. 2005); Murillo-Espinoza v. 18 INS, 261 F.3d 771, 774 (9th Cir. 2001). 19 Accordingly, we turn to Chevron ’s second step, which directs 20

us to consider wh ether the BIA adopted “a permissible 21 construction of the st atute.” C hevron, 467 U.S. at 843. In 22 makingthis assessment, “[i]t is not necessary that we conclude 23 that the agency’s in terpretation of the statute is the only 247 Although Saleh cl aims that the agency erred as a matter

of law in reaching its decision, we will construe his argument as urging that the BIA’s interpretation was unreasonable. -11- permissible interpretation, nor that we believe it to be the best 1 interpretation of the statute.” Skubel v. Fuoroli, 113 F.3d 330, 2 336 (2d Cir. 1997) (citi ng Che vron, 467 U.S. at 843 n.11). 3 Rather, to affirm the BIA’s determination, we need only conclude 4 that the agency’s interpretation is “‘rational and consistent 5 with the statute.’” Protecti on & Advocacy for Persons with 6 Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 7 124 (2d Cir. 2006) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 8 (1990)). 9 The BIA has adoptedan interpretation of 8 U.S.C. § 10 1101(a)(48)(A) that distinguishes between convictions vacated on 11 the merits, which the BIA does not treat as “convictions” within 12 the meaning of the provision, and convictions vacatedfor other 13 reasons, including to avoid immigration hardships, which the BIA 14 continues to treat as “convictions.” Because Saleh’s conviction 15 fell into the latter category, the B IA concluded that the nunc 16 pro tunc amendment did not affect his conviction stat us for 17 removabilitypurposes. For reasons to be discussed, we reject 18 Saleh’s contention that the interpretation is unreasonable. 7 19 Over the last 20 yea rs, there has been a consistent 20 broadeningof the meaning of “conviction” in the INA. Until 21 1996, the INA did not contain a statutory definition of 22-12-

“conviction,” and for most of that time, the BIAgenerally took 1 the position that an alien whose conviction is vacated or 2 expungedunder state law no longer stoodconvicted of a removable 3 offense for federal immigration purposes. See Matter of Ozkok, 4 19 I. & N. Dec. 546, 550-52 (BIA 1988). In 1 98 8, the BIA 5 acknowledged , albeit in a somewhat different context from the 6 instant case, that its own prior approach was unduly deferential 7 to state definitions o f conviction and had thus frustrated 8 congressional intent: “[F]orm has been placed over substance, and 9 aliens who are clearly guilty of criminal be hav ior and whom 10 Congress intended to be considered‘conv icted’ have been 11 permittedto escape the immigration consequences normally 12 attendant upon a conviction.” Id. at 551. Accordingly, the BIA 13 attemptedin Ozkokto remedythe problem, adopting a broader test 14 f or determining whether a conviction existed for f edera l 15 immigration purposes. 16 But Congress was of the opinion that the BIA had not gone 17 far enough . See Francis v. Gonzales, 442 F.3d131, 140 (2d Cir. 18 2006) (noting that “Congress subsequently indicated its 19 dissatisfaction with the Ozkoktest when it am ended the INA to 20 change t he definition of conviction in 1996”). Congress 21 therefore codified, for the first time, a definition of the term 22 “conviction” in the INA. See 8 U.S.C. § 1101(a)(48)(A) (1996); 23

see also Francis, 442 F.3d at 140. This defini tion w as 24-13-

specifically intendedto broaden the definition of “conviction” 1 under the INA that had been previously used by t he BIA . See 2 Francis , 442 F.3d at 139 (noting that “[t]he applicable 3 definition of ‘conviction’ was narrower [prior to Congress’ 4 intervention] than it is today”). In particul ar , Congress 5 expandedthe Ozkokdefinition by including convictions where the 6 adjudication of guilt was deferred. As the Conference Report on 7 the amendments explained, “there exist[s] in the various states 8

a myriad of provisions for am eliorating the effects of a 9 conviction. As a result, aliens who have clearlybeen guilty of 10 cri minal behavior and whom Congress intended to be consid ere d 11 “convicted” have escaped the immigration consequences normally 12 atte ndant upon a conviction.” H.R. Conf. Rep. No. 104-828 a t 13 224. 14 Interpretingthe new definition, the BIA iden tifi ed two 15 primaryaims that it believed Congress sought to accomplish: to 16 focus the conviction inquiry on the “origina l determination of 17 guilt” and to “implement a uniform federal approach.” Matter of 18 Roldan, 22 I. & N. Dec. 512, 521-22 (BIA 1999). Relying on these 19 rationales, the BIA, in a series of cases culminating in Matter 20 of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversedon other 21 grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), 22 furth er expanded the definition of conviction beyond t h e 23 particular procedural mechanism considered by Congress in its 24-14-

1996 amendments to the INA. In Pi ckering , the BIA conclude d 1 that Congress objected generally to many state actions allowing 2 aliens to “escape the immigration consequences normally attendant 3 upon a conviction,” H.R. Conf. Rep. No. 104-828 at 224, and that 4 Congress did not intend to allow an alien to es cape those 5 consequences by me ans of a s tate vacatur that was not on the 6 merits. Pickering gave effect to this objective by holding that 7 the federal immigration consequences of all post-conviction 8

re li ef will be determined by considering the State court’s 9 motivation in granting the relief, e.g., avoiding immigration 10 hardships, recognizing the defendant’s rehabilitation, or a 11 substantive or procedural defect in the predicate conviction. 12 Specifically, the BIA held that 13 [T]here is a significant distinction between convictions 14 vacatedon the basis of a procedural or substantive 15 defect in the underlying proceedings and those vacated 16 because of post-conviction events, su c h as 17 rehabilitation or immigration hardships. Thus, if a 18 court with jurisdiction vacates a conviction based on a 19 defect in the underlying criminal proceedings, the 20 res p ondent no longer has a “conviction” within the 21 meaningof section 101(a)(48)(A) [8 U.S.C. § 22 1101(a)(48)(A)]. If, however, a court vaca te s a 23 convictio n for reasons unrelated to the merits of the 24 underlyingcriminal proceedings, the respondent remains 25 “convicted” for immigration purposes. 26 27 Id. at 624. 28 Relyingin part on this reasoning, the BIA in the appeal now 29 before us concluded that Saleh remained convictedof the original 30 removable offense because the amen dm ent to Saleh’s judgment of 31-15-

conviction was obtained solely to avoid “immigration hardships” 1 andnot to reme dy a p rocedural or substantive defect in the 2 underlying proceedings. 3 The BIA’s interpretation in both Pickeringand the instant 4

case is reasonable. For on e thin g, the interpretation is 5 entirelyconsistent with Congress’ intent in e na cting the 1996 6 amendments to broaden the definition of conviction and advances 7 the two purposes earlier identified by the BIA: it focuses on the 8 original attachment of guilt (which only a vacatur based on some 9 procedural or substantive defect w ou ld call into question) and 10 im poses uniformity on the enforcement of immigration l aws . 11 Second, from a practical perspective, while state convictions are 12 a useful wayfor the federal government to identifyindividuals 13 who, because of their cri minal history, may be appropriate for 14 removal, there will still remain individuals who a re guilty of 15 “morallyturpitudinous” conduct, see Michel, 206 F.3d at 263, and 16 the refore suitable for removal even though they do not have a 17 still-standingconviction for a removable offense under state 18 law. Cf. Dickerson , 460 U.S. at 12 0 (not ing that state 19 convictions “provide a convenient, although somewhat inexact, way 20 of identifying ‘especially risky people’” and that “[t]here is no 21 inconsistencyin the refusal of Congress to be bound by 22 postconviction state actions . . . that vary widely from State to 23 State and that provide less th an pos itive assurance that the 248 We n ote that we have already embraced, in a slightly

different context, approximately the BIA’s standard in Pickering . In Campbell , we held that the district court could apply a sentencing enhancement called for by federal law for a vacatedstate aggravated felony conviction because “[de fenda nt’s] conviction was not reversed, and the vacatur order was not based on anysh owing of innocence or on any suggestion that th e co nviction had been improperly obtained.” 167 F.3dat 98. Although Campbell is not controlling in this case, we continue to believe that this standard, which the BIA has substantiallyadopted and appliedto the removal context in Pickering , is consistent with congressional intent. -16- person in question no longer poses an unacceptable risk of 1 dangerousness.” (internal citations omitted)). Under Pickering , 2 these individuals will remain removable, as Congress intended. 3 Particularlyas applied to post-conviction relief grantedto 4 aidthe defendant in avoiding immigration hardship, we think the 5 BIA’s position eminentlyreasonable: When a conviction is amended 6 nunc pro tunc solely to enable a defendant to avoid immigration 7 consequences, in co ntr ast to an amendment or vacatur on the 8 merits, there is no reason to conclude that the alien is any less 9 suitable for removal. 8 10 For this re ason, we find particularly instructive the 11 settledlaw of our sister circuits, which holds that the BIA has 12 reasonablyconclud ed tha t an alien remains convicted of a 13 removable offense for federal immigration purposes when a state 14 vacates the predicate a conviction pursuant to a rehabilitative 15 statute. See, e.g., Picke ring, 465 F.3d at 266; Alim v. 16 Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Pinho, 432 17-17-

F.3dat 195; Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 1 2005); Cruz-Garza, 396 F.3d at 1129; Res endiz- Alcaraz v. 2 Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); M urillo

3 Espinoza, 261 F.3dat 774; Herrera-Inirio v. INS, 208 F.3d 299, 4 305 (1st Cir. 2000). Saleh attempts to distinguish aw ay thi s 5 bodyof law b y argu ing that his vacatur, by contrast, had 6 absolutelynothing to d o w ith rehabilitation. We agree, of 7 course, but his argument proves too much. It would make little 8

sense for federal law to ignore vacaturs for r eh abilitation, 9 which, at least in some cases, reflect a measured judgment that 10 the defendant is rehabilitated, but recognize vacatur s that 11 solelyaim to help the defendant avo idadverse immigration 12 consequences. 13 In light of the foreg oing, we join our sister circuits in 14 holdingthat the BIA’s conclusion -- that an alien remains 15 convictedof a removable offense for federal immigration purposes 16 when the predicate conviction is vacated simply to aidthe alien 17 in avoiding adverse immigration consequences and not because of 18 anyprocedural or substantive defect in the original conviction 19

-- is a permissible construction of the statute andis therefore 20 entitledto deference. See, e.g., Sanusi v. Gonzales, 474 F.3d 21 341, 342-43 (6th Cir. 2007) (“We denythe petitions for reviewon 22 the ground that the state court’s vacation of Sanusi’s conviction 23

was ineffective for immigratio n purposes because it was done 249 We note that our holding in this case is limited to postcon vict ion relief granted solely to avoid adverse immigration consequences and not because of any procedural or sub stantive defect in the original conviction, and we leave for another day the effect of post-conviction relief granted for other reasons. -18- solelyfor the purpose of ameliorating the immigration 1 consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 2 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 3 2005). 9 4 2. Does th e BIA’s construction of 8 U.S.C. § 5 1101( a) (48)(A) violate the full faith and credit 6 statute? 7 8 We turn now to Saleh’s additional argume nt that the 9 interpretation the BIA adopted, and which we h ere deem 10 reasonable, violates the statutoryanalogue of the full faith and 11 credit clause. See 28 U.S.C. § 1738 (federal courts must give 12 full faith and credit to state acts, records, and judicial 13 proceedings); cf. U.S. Const. art. IV, § 1 . We agree with the 14 First Circuit that “sec t ion 1101(a)(48)(A) does not infract 15 applicable principles of full faith and credit,” Herrera-Inirio, 16 208 F.3d at 307, because “neither the constitutional clause nor 17 its statutory an a logue (binding federal courts) purports to 18 prevent federal legislative authorities from writing federal 19 statutes that differ fro m s tate statutes or from attaching, to 20 words in a fede ral statute, a meaning that differs from the 21 meaningattached to the same word when usedin a statute enacted 22-19-

bya state,” Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) 1 (Breyer, J.). 2 Similarly, we have held that the full fa ith and credit 3 statute does not prevent a federal court from taking cognizance 4 of a state youthful offender adjudication as a prior conviction 5 in sentencing even though the adjudication is not regarded as a 6 conviction under state law: 7 [T]he “principles of federalism and comity embodied in 8 the full faith and credit statute,” Growe v. Emison, 507 9 U.S. 25, 35, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), are 10 not endangered when a sentencing court, not questioning 11 the propriety of the state’s determination in any way, 12 interprets how to apply New York’s youthful offender 13 adjudication s to a Guidelines analysis. . . . The 14 federal sentencing court is neither refusing to 15 recognize nor relitigating the validity of [defendant’s] 16 NewYork state judgme nt of conviction or his youthful 17 offender sentence. Ins tea d, it is merely noticing and 18 actingupon the fact of [defendant’s] prior conviction.” 19 20 UnitedStates v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) 21 (internal cit ati ons omitted). Here, too, the BIA is simply 22 i nterpretinghow to apply Saleh’s vacated State conviction fo r 23 receivingstolen property to the I NA and is not refusing to 24 recognize or relitigating the validity of S aleh’s California 25 state conviction. The full faith and credi t stat ute is not 26 thereby violated. 27 B. Didthe BIA properly deny Saleh’s a pplication fo r 28 cancellation of removal? 29 30 Finally, the BIA did not err in affirming the IJ’s denial of 31 Saleh’s application for cancellation of removal. The application 3210 After the filing of this opinion, it was brought to the

Court’s attention that the “stop-time” r ule may not apply retroactivelyto off enses committed before April 1, 1997, the effective date of the Illegal Imm igrant and Immigrant ResponsibilityAct of 1996. That issue is presently before another panel of this Court but was never presented here by Saleh. Accordingly, we deem Saleh to have waived that argument. See Yueqing Zhang, 426 F.3d at 542 n.1. Nothing in this opinion shouldbe construed as deciding whether the “stop-time” rule applies retroactively. -20- was untimely. In any event, Saleh was ineligible for the relief 1 because he does not satisfy the provision’s seven-year continuous 2 residence requirement, 8 U.S.C. § 1229b(a)(2). His conviction of 3

a removable offense (which, for the above reasons, stands for 4 federal immigratio n p urposes) triggers the “stop-time rule,” 8 5 U.S.C. § 1229b(d)(1), under which an alien’s continuous residency 6

or physica l presence ends, for purposes of cancellation of 7 removal, on the date he commits a qualifying offense or on the 8 date a notice to appear is filed. Accordingly, Saleh’s period of 9 continuous residence ended, at the ve ry latest, in 1993, after 10 onlyt hree years in the country. See generally Tablie v. 11 Gonzales, 471 F.3d 60, 61-62 (2d Cir. 2006). 10 12 III. CONCLUSION 13 We have conside redall of Saleh’s arguments on appeal and 14 fi ndth em to be without merit. For the foregoing reasons, we 15 denySaleh’s petition for review. The pending motion for a stay 16 of removal in this case is denied as moot. 17