05-5909

Saleh v. Gonzales

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT 

4 

5 -------------

6

7 August Term 2006

8

9 Argued: (April 30, 2007 Decided: July 17, 2007

10 Amended: August 3, 2007)

11

12 Docket No. 05-5909-ag

13

14 --------------------------------------------------X

15

16 YASSER NASSER SALEH, 

17

18 Petitioner,

19

20 - against -

21

22 ALBERTO GONZALES, Attorney General of the United States,

23

24 Respondent.

25

26 --------------------------------------------------X

27

28 Before: FEINBERG, SOTOMAYOR, and HALL, Circuit Judges.

29

30 Petitioner seeks review of a decision of the Board of

31 Immigration Appeals affirming decisions of the Immigration Judge

32 denying his motion to terminate removal proceedings, finding him

33 removable, and denying his application for relief. 

34

35 Petition for review denied.

36

37 ERIC W. SCHULTZ, Sacks, Kolken & Schultz,

38 Buffalo, New York, for Petitioner.

39

40 SHANE CARGO, Assistant United States Attorney,

41 (Michael J. Garcia, United States Attorney,

42 Sara L. Shudofsky, Assistant United States

43 Attorney, on the brief), United States

44 Attorney’s Office for the Southern District

45 of New York, for Respondent.

46

47
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1 FEINBERG, Circuit Judge:

2 Yasser Nasser Saleh, a lawful permanent resident of the

3 United States, was charged as removable under section

4 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”),

5 8 U.S.C. § 1227(a)(2)(A)(i). The basis of the charge was his

6 conviction in state court of receiving stolen property, which is

7 a removable offense, i.e., a “crime involving moral turpitude”

8 (“CIMT”) for which a sentence of one year or longer could have

9 been imposed. In an effort to escape the adverse immigration

10 consequences of that conviction, Saleh thereafter obtained an

11 amendment of the judgment so that he instead stood convicted of

12 petty theft, which is not a removable offense.

13 In this petition, Saleh seeks review of the decision of the

14 Board of Immigration Appeals (“BIA”) affirming decisions of the

15 Immigration Judge (“IJ”) (A) rejecting Saleh’s argument that he

16 no longer stands convicted of a removable offense and therefore

17 denying his motion to terminate his removal proceedings and (B)

18 finding Saleh removable as charged and denying his application

19 for relief from removal. In re Saleh, No. A41 982 414 (B.I.A.

20 Oct. 4, 2005), aff’g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22,

21 2004).

22 In reviewing these decisions, the principal question before

23 us is whether the BIA erred in concluding that Saleh remains

24 “convicted” of a removable offense for federal immigration
1 The statute provides, in pertinent part, that “[e]very

person who buys or receives any property that has been stolen or

that has been obtained in any manner constituting theft 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 not more than one

year.” Cal. Pen. Code § 496(a). Saleh 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 its current location in

section 496(a).

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1 purposes even though the state court amended its judgment of

2 conviction to effectively expunge his conviction of a removable

3 offense under state law. For the reasons set forth below, we

4 hold that the BIA did not err because the amendment was secured

5 solely to aid Saleh in avoiding immigration consequences and was

6 not based on any procedural or substantive defect in the original

7 conviction. We therefore deny the petition. 

8 I. BACKGROUND

9 Saleh, a native and citizen of Yemen, was admitted to the

10 United States as a lawful permanent resident in 1990. In 1993,

11 Saleh was convicted in California state court, following his

12 plea of nolo contendere, of receiving stolen property in

violation of section 496(a) of the California Penal Code.1 13 The

14 offense carries a maximum sentence of one-year imprisonment, see

15 Cal. Pen. Code § 496(a), although the court imposed a lower
2 This was neither Saleh’s first nor last brush with the

law. He had already been convicted in 1992 of unlawfully

discharging a firearm and driving while intoxicated, and was

thereafter convicted in 1997 of criminal mischief, in 1998 of

driving while intoxicated, and in 2000 of driving while

intoxicated. 

3 On March 1, 2003, the INS was reconstituted into two

agencies, the Bureau of Immigration and Customs Enforcement and

the U.S. Citizenship and Immigration Services, both within the

Department of Homeland Security. See Jian Hui Shao v. Bd. of

Immigration Appeals, 465 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.” 

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sentence.2 1 In July 2001, the Immigration and Naturalization

Service (“INS”) commenced removal proceedings,3 2 charging that

3 Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his

4 1993 crime qualifies as a CIMT, committed within 10 years after

5 the date of admission, for which a sentence of one year or longer

6 could have been imposed.

7 Subsequently, for the announced purpose of escaping adverse

8 immigration consequences, Saleh moved in California state court

9 for an amendment of the judgment convicting him of receiving

10 stolen property, effective nunc pro tunc, so that he would

11 instead stand convicted of petty theft in violation of section

12 488 of the California Penal Code. Because this is not a crime

13 for which a sentence of one year or longer could have been

14 imposed, it is not a removable offense. In a declaration

15 accompanying Saleh’s motion, his counsel expressly referred to

16 the immigration consequences of Saleh’s original conviction,
4 Although the Government bears the burden of proving, by

clear and convincing evidence, that Saleh is removable, see 8

U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345

(2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465

F.3d 263, 268-69 (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 appeal that the

California court amended the judgment of conviction to help him

avoid immigration 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).

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1 stating that “the alternative disposition of petty theft, which

2 carries a six month maximum sentence would not have the adverse

3 immigration consequences.” Moreover, no evidence or argument

4 presented to that court identified any substantive or procedural

5 defects in Saleh’s conviction. The California court granted the

6 motion.

7 Saleh thereafter asked the IJ to terminate the agency’s

8 removal proceedings, arguing that petty theft is not a removable

9 offense. The IJ denied the motion, reasoning that, despite the

10 California court’s amendment to the judgment of conviction, Saleh

11 remained “convicted” of receiving stolen property, a removable

12 offense for federal immigration purposes, because the amendment

13 was not “based on any showing of innocence or any suggestion that

14 the conviction had been improperly obtained.” Instead, the IJ

15 found that the conviction was amended “solely for the purpose of

circumventing the immigration laws of the United States.”4 16

17 After the IJ denied Saleh’s motion to terminate his removal

18 proceedings and the BIA declined to entertain his interlocutory
5 Saleh abandoned his 212(c) application because, after

filing the Form I-191, his counsel determined that Saleh had

also been convicted of a firearms offense, see supra note 2,

which rendered him ineligible for 212(c) relief.

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1 appeal of that decision, Saleh contested removability and sought

2 relief from removal. He initially filed a Form I-191, a

3 prerequisite to obtaining a waiver of deportation under former

4 section 212(c) of the INA. Subsequently, however, Saleh

5 abandoned his application for 212(c) relief and instead filed a

motion to substitute an application for cancellation of removal.5 6

7 The IJ found Saleh removable and denied his application for

8 cancellation of removal as untimely.

9 The BIA adopted and affirmed the IJ’s decision and dismissed

10 the appeal. Relying on its prior decision in Matter of

11 Pickering, 23 I. & N. Dec. 621 (BIA 2003), the Board agreed with

12 the IJ that Saleh remained “convicted” of a removable offense for

13 federal immigration purposes because the amendment of the

14 judgment of conviction was not based on “any substantive or

15 procedural defect in the underlying criminal proceedings,” and

16 Saleh was therefore removable. Saleh filed a timely petition for

17 review.

18 II. ANALYSIS

19 In his petition, Saleh argues that the BIA erred in finding

20 him removable and in denying his application for cancellation of

21 removal. In support, he argues principally that (A) the BIA’s
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1 interpretation of the INA, under which he remains convicted of a

2 removable offense, (1) is not entitled to deference under

3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

4 467 U.S. 837 (1984) and (2) violates 28 U.S.C. § 1738, which

5 obliges federal courts to give full faith and credit to state

6 acts, records, and judicial proceedings; and (B) the BIA

7 erroneously concluded that he was ineligible for cancellation of

8 removal. We reject each of his arguments. 

9 A. Did the BIA err in concluding that Saleh remains

10 convicted of a removable offense for federal

11 immigration purposes?

12 1. Is the BIA’s interpretation of the INA at issue

13 in this case entitled to deference under Chevron?

14

15 The BIA determined that Saleh was removable pursuant to 8

16 U.S.C. § 1227(a)(2)(A)(i), which makes removable any alien who

17 “(I) is convicted of a crime involving moral turpitude committed

18 within five years (or 10 years in the case of an alien provided

19 lawful permanent resident status . . .) after the date of

20 admission, and (II) is convicted of a crime for which a sentence

21 of one year or longer may be imposed.” The BIA properly

22 concluded that Saleh’s original conviction for receiving stolen

23 property, in violation of Cal. Pen. Code § 496(a), satisfies

24 these requirements. See Michel v. INS, 206 F.3d 253, 263 (2d

25 Cir. 2000). Although Saleh thus stood convicted of a removable

26 offense under state law at one time, he subsequently secured an

27 amendment of the State’s judgment in an effort to avoid adverse
6 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

form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). 

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1 immigration consequences and not because of any procedural or

2 substantive defect in the original conviction. Therefore, the

3 issue before us is whether, under these circumstances, Saleh

4 remains “convicted” of a removable offense for federal

5 immigration purposes, viz. within the meaning of 8 U.S.C. §

6 1227(a)(2)(A)(i) and the INA’s definition of “conviction,” 8

U.S.C. § 1101(a)(48)(A).6 7

8 This is a question of federal statutory interpretation. We

9 have previously observed that “[w]hether one has been ‘convicted’

10 within the language of [federal] statutes is necessarily . . . a

11 question of federal, not state, law, despite the fact that the

12 predicate offense and its punishment are defined by the law of

13 the State.” United States v. Campbell, 167 F.3d 94, 97 (2d Cir.

14 1999) (alternations in original, citation omitted); cf. Dickerson

15 v. New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983) (holding

16 that in “the absence of a plain indication to the contrary, . .

17 . it is to be assumed when Congress enacts a statute that it does
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1 not intend to make its application dependent on state law”

2 (alterations in original, citation omitted)). 

3 We review the BIA’s interpretation of the INA under the

4 familiar two-step analysis set forth in Chevron, 467 U.S. 837.

5 See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). First,

6 we determine whether the provision in question is ambiguous;

7 “[i]f the intent of Congress is clear, that is the end of the

8 matter; for the court, as well as the agency, must give effect to

9 the unambiguously expressed intent of Congress.” Chevron, 467

10 U.S. at 842-43. If, however, “the statute is silent or ambiguous

11 with respect to the specific issue, the question for the court is

12 whether the agency’s answer is based on a permissible

13 construction of the statute,” and thus entitled to deference.

14 Id. at 843.

15 Turning to the first step of this analysis, we conclude that

16 Congress’ intent on the treatment of vacated or amended

17 convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous. Saleh

18 was deemed removable because, inter alia, he is an alien who “is

19 convicted of a crime involving moral turpitude,” 8 U.S.C. §

20 1227(a)(2)(A)(i), and conviction is defined, in pertinent part,

21 as “a formal judgment of guilt of the alien entered by a court,”

22 8 U.S.C. § 1101(a)(48)(A). This language permits a spectrum of

23 possible interpretations. On one end of the spectrum, Congress

24 may have intended that where an alien receives any type of post-
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1 conviction relief -- either through an amendment nunc pro tunc,

2 an expungement, or some other remedy -- the immigration law

3 should treat the conviction as if it never occurred, regardless

4 of the reason for the relief. Under this view, the expungement

5 means that the defendant no longer “is convicted of [the

6 original] crime” and there is no longer any “formal judgment of

7 guilt of the alien entered by a court.” On the other end of the

8 spectrum, Congress may have intended that no post-conviction

9 relief whatsoever should have any effect on whether an alien

10 stands “convicted” of a removable offense, again, regardless of

11 the reason for the relief. Or, Congress may have intended some

12 middle position: that certain types of post-conviction relief

13 would affect an alien’s “conviction” status under the INA, but

14 others would not, depending upon the reason for the relief.

15 Neither the relevant statutory language nor legislative history

16 allows us to conclude that any of these interpretations

17 represents Congress’ unambiguous intent. See, e.g., Pinho v.

18 Gonzales, 432 F.3d 193, 206 (3d Cir. 2005); Murillo-Espinoza v.

19 INS, 261 F.3d 771, 774 (9th Cir. 2001).

20 Accordingly, we turn to Chevron’s second step, which directs

21 us to consider whether the BIA adopted “a permissible

22 construction of the statute.” Chevron, 467 U.S. at 843. In

23 making this assessment, “[i]t is not necessary that we conclude

24 that the agency’s interpretation of the statute is the only
7 Although Saleh claims 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.

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1 permissible interpretation, nor that we believe it to be the best

2 interpretation of the statute.” Skubel v. Fuoroli, 113 F.3d 330,

3 336 (2d Cir. 1997) (citing Chevron, 467 U.S. at 843 n.11).

4 Rather, to affirm the BIA’s determination, we need only conclude

5 that the agency’s interpretation is “‘rational and consistent

6 with the statute.’” Protection & Advocacy for Persons with

7 Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119,

8 124 (2d Cir. 2006) (quoting Sullivan v. Everhart, 494 U.S. 83, 89

9 (1990)). 

10 The BIA has adopted an interpretation of 8 U.S.C. §

11 1101(a)(48)(A) that distinguishes between convictions vacated on

12 the merits, which the BIA does not treat as “convictions” within

13 the meaning of the provision, and convictions vacated for other

14 reasons, including to avoid immigration hardships, which the BIA

15 continues to treat as “convictions.” Because Saleh’s conviction

16 fell into the latter category, the BIA concluded that the nunc

17 pro tunc amendment did not affect his conviction status for

18 removability purposes. For reasons to be discussed, we reject

Saleh’s contention that the interpretation is unreasonable.7 19 

20 Over the last 20 years, there has been a consistent

21 broadening of the meaning of “conviction” in the INA. Until

22 1996, the INA did not contain a statutory definition of
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1 “conviction,” and for most of that time, the BIA generally took

2 the position that an alien whose conviction is vacated or

3 expunged under state law no longer stood convicted of a removable

4 offense for federal immigration purposes. See Matter of Ozkok,

5 19 I. & N. Dec. 546, 550-52 (BIA 1988). In 1988, the BIA

6 acknowledged, albeit in a somewhat different context from the

7 instant case, that its own prior approach was unduly deferential

8 to state definitions of conviction and had thus frustrated

9 congressional intent: “[F]orm has been placed over substance, and

10 aliens who are clearly guilty of criminal behavior and whom

11 Congress intended to be considered ‘convicted’ have been

12 permitted to escape the immigration consequences normally

13 attendant upon a conviction.” Id. at 551. Accordingly, the BIA

14 attempted in Ozkok to remedy the problem, adopting a broader test

15 for determining whether a conviction existed for federal

16 immigration purposes. 

17 But Congress was of the opinion that the BIA had not gone

18 far enough. See Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir.

19 2006) (noting that “Congress subsequently indicated its

20 dissatisfaction with the Ozkok test when it amended the INA to

21 change the definition of conviction in 1996”). Congress

22 therefore codified, for the first time, a definition of the term

23 “conviction” in the INA. See 8 U.S.C. § 1101(a)(48)(A) (1996);

24 see also Francis, 442 F.3d at 140. This definition was
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1 specifically intended to broaden the definition of “conviction”

2 under the INA that had been previously used by the BIA. See

3 Francis, 442 F.3d at 139 (noting that “[t]he applicable

4 definition of ‘conviction’ was narrower [prior to Congress’

5 intervention] than it is today”). In particular, Congress

6 expanded the Ozkok definition by including convictions where the

7 adjudication of guilt was deferred. As the Conference Report on

8 the amendments explained, “there exist[s] in the various states

9 a myriad of provisions for ameliorating the effects of a

10 conviction. As a result, aliens who have clearly been guilty of

11 criminal behavior and whom Congress intended to be considered

12 “convicted” have escaped the immigration consequences normally

13 attendant upon a conviction.” H.R. Conf. Rep. No. 104-828 at

14 224.

15 Interpreting the new definition, the BIA identified two

16 primary aims that it believed Congress sought to accomplish: to

17 focus the conviction inquiry on the “original determination of

18 guilt” and to “implement a uniform federal approach.” Matter of

19 Roldan, 22 I. & N. Dec. 512, 521-22 (BIA 1999). Relying on these

20 rationales, the BIA, in a series of cases culminating in Matter

21 of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other

22 grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006),

23 further expanded the definition of conviction beyond the

24 particular procedural mechanism considered by Congress in its
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1 1996 amendments to the INA. In Pickering, the BIA concluded

2 that Congress objected generally to many state actions allowing

3 aliens to “escape the immigration consequences normally attendant

4 upon a conviction,” H.R. Conf. Rep. No. 104-828 at 224, and that

5 Congress did not intend to allow an alien to escape those

6 consequences by means of a state vacatur that was not on the

7 merits. Pickering gave effect to this objective by holding that

8 the federal immigration consequences of all post-conviction

9 relief will be determined by considering the State court’s

10 motivation in granting the relief, e.g., avoiding immigration

11 hardships, recognizing the defendant’s rehabilitation, or a

12 substantive or procedural defect in the predicate conviction.

13 Specifically, the BIA held that

14 [T]here is a significant distinction between convictions

15 vacated on the basis of a procedural or substantive

16 defect in the underlying proceedings and those vacated

17 because of post-conviction events, such as

18 rehabilitation or immigration hardships. Thus, if a

19 court with jurisdiction vacates a conviction based on a

20 defect in the underlying criminal proceedings, the

21 respondent no longer has a “conviction” within the

22 meaning of section 101(a)(48)(A) [8 U.S.C. §

23 1101(a)(48)(A)]. If, however, a court vacates a

24 conviction for reasons unrelated to the merits of the

25 underlying criminal proceedings, the respondent remains

26 “convicted” for immigration purposes.

27

28 Id. at 624. 

29 Relying in part on this reasoning, the BIA in the appeal now

30 before us concluded that Saleh remained convicted of the original

31 removable offense because the amendment to Saleh’s judgment of
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1 conviction was obtained solely to avoid “immigration hardships”

2 and not to remedy a procedural or substantive defect in the

3 underlying proceedings.

4 The BIA’s interpretation in both Pickering and the instant

5 case is reasonable. For one thing, the interpretation is

6 entirely consistent with Congress’ intent in enacting the 1996

7 amendments to broaden the definition of conviction and advances

8 the two purposes earlier identified by the BIA: it focuses on the

9 original attachment of guilt (which only a vacatur based on some

10 procedural or substantive defect would call into question) and

11 imposes uniformity on the enforcement of immigration laws.

12 Second, from a practical perspective, while state convictions are

13 a useful way for the federal government to identify individuals

14 who, because of their criminal history, may be appropriate for

15 removal, there will still remain individuals who are guilty of

16 “morally turpitudinous” conduct, see Michel, 206 F.3d at 263, and

17 therefore suitable for removal even though they do not have a

18 still-standing conviction for a removable offense under state

19 law. Cf. Dickerson, 460 U.S. at 120 (noting that state

20 convictions “provide a convenient, although somewhat inexact, way

21 of identifying ‘especially risky people’” and that “[t]here is no

22 inconsistency in the refusal of Congress to be bound by

23 postconviction state actions . . . that vary widely from State to

24 State and that provide less than positive assurance that the
8 We note 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

vacated state aggravated felony conviction because

“[defendant’s] conviction was not reversed, and the vacatur

order was not based on any showing of innocence or on any

suggestion that the conviction had been improperly obtained.”

167 F.3d at 98. Although Campbell is not controlling in this

case, we continue to believe that this standard, which the BIA

has substantially adopted and applied to the removal context in

Pickering, is consistent with congressional intent. 

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1 person in question no longer poses an unacceptable risk of

2 dangerousness.” (internal citations omitted)). Under Pickering,

3 these individuals will remain removable, as Congress intended.

4 Particularly as applied to post-conviction relief granted to

5 aid the defendant in avoiding immigration hardship, we think the

6 BIA’s position eminently reasonable: When a conviction is amended

7 nunc pro tunc solely to enable a defendant to avoid immigration

8 consequences, in contrast to an amendment or vacatur on the

9 merits, there is no reason to conclude that the alien is any less

suitable for removal.8 10

11 For this reason, we find particularly instructive the

12 settled law of our sister circuits, which holds that the BIA has

13 reasonably concluded that an alien remains convicted of a

14 removable offense for federal immigration purposes when a state

15 vacates the predicate a conviction pursuant to a rehabilitative

16 statute. See, e.g., Pickering, 465 F.3d at 266; Alim v.

17 Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Pinho, 432
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1 F.3d at 195; Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir.

2 2005); Cruz-Garza, 396 F.3d at 1129; Resendiz-Alcaraz v.

3 Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo4 Espinoza, 261 F.3d at 774; Herrera-Inirio v. INS, 208 F.3d 299,

5 305 (1st Cir. 2000). Saleh attempts to distinguish away this

6 body of law by arguing that his vacatur, by contrast, had

7 absolutely nothing to do with rehabilitation. We agree, of

8 course, but his argument proves too much. It would make little

9 sense for federal law to ignore vacaturs for rehabilitation,

10 which, at least in some cases, reflect a measured judgment that

11 the defendant is rehabilitated, but recognize vacaturs that

12 solely aim to help the defendant avoid adverse immigration

13 consequences. 

14 In light of the foregoing, we join our sister circuits in

15 holding that the BIA’s conclusion -- that an alien remains

16 convicted of a removable offense for federal immigration purposes

17 when the predicate conviction is vacated simply to aid the alien

18 in avoiding adverse immigration consequences and not because of

19 any procedural or substantive defect in the original conviction

20 -- is a permissible construction of the statute and is therefore

21 entitled to deference. See, e.g., Sanusi v. Gonzales, 474 F.3d

22 341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on

23 the ground that the state court’s vacation of Sanusi’s conviction

24 was ineffective for immigration purposes because it was done
9 We note that our holding in this case is limited to postconviction relief granted solely to avoid adverse immigration

consequences and not because of any procedural or substantive

defect in the original conviction, and we leave for another day

the effect of post-conviction relief granted for other reasons.

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1 solely for the purpose of ameliorating the immigration

2 consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432

3 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir.

2005).9 4

5 2. Does the BIA’s construction of 8 U.S.C. §

6 1101(a)(48)(A) violate the full faith and credit

7 statute?

8

9 We turn now to Saleh’s additional argument that the

10 interpretation the BIA adopted, and which we here deem

11 reasonable, violates the statutory analogue of the full faith and

12 credit clause. See 28 U.S.C. § 1738 (federal courts must give

13 full faith and credit to state acts, records, and judicial

14 proceedings); cf. U.S. Const. art. IV, § 1. We agree with the

15 First Circuit that “section 1101(a)(48)(A) does not infract

16 applicable principles of full faith and credit,” Herrera-Inirio,

17 208 F.3d at 307, because “neither the constitutional clause nor

18 its statutory analogue (binding federal courts) purports to

19 prevent federal legislative authorities from writing federal

20 statutes that differ from state statutes or from attaching, to

21 words in a federal statute, a meaning that differs from the

22 meaning attached to the same word when used in a statute enacted
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1 by a state,” Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992)

2 (Breyer, J.). 

3 Similarly, we have held that the full faith and credit

4 statute does not prevent a federal court from taking cognizance

5 of a state youthful offender adjudication as a prior conviction

6 in sentencing even though the adjudication is not regarded as a

7 conviction under state law: 

8 [T]he “principles of federalism and comity embodied in

9 the full faith and credit statute,” Growe v. Emison, 507

10 U.S. 25, 35, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), are

11 not endangered when a sentencing court, not questioning

12 the propriety of the state’s determination in any way,

13 interprets how to apply New York’s youthful offender

14 adjudications to a Guidelines analysis. . . . The

15 federal sentencing court is neither refusing to

16 recognize nor relitigating the validity of [defendant’s]

17 New York state judgment of conviction or his youthful

18 offender sentence. Instead, it is merely noticing and

19 acting upon the fact of [defendant’s] prior conviction.”

20

21 United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005)

22 (internal citations omitted). Here, too, the BIA is simply

23 interpreting how to apply Saleh’s vacated State conviction for

24 receiving stolen property to the INA and is not refusing to

25 recognize or relitigating the validity of Saleh’s California

26 state conviction. The full faith and credit statute is not

27 thereby violated.

28 B. Did the BIA properly deny Saleh’s application for

29 cancellation of removal?

30

31 Finally, the BIA did not err in affirming the IJ’s denial of

32 Saleh’s application for cancellation of removal. The application
10 After the filing of this opinion, it was brought to the

Court’s attention that the “stop-time” rule may not apply

retroactively to offenses committed before April 1, 1997, the

effective date of the Illegal Immigrant and Immigrant

Responsibility Act 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

should be construed as deciding whether the “stop-time” rule

applies retroactively.

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1 was untimely. In any event, Saleh was ineligible for the relief

2 because he does not satisfy the provision’s seven-year continuous

3 residence requirement, 8 U.S.C. § 1229b(a)(2). His conviction of

4 a removable offense (which, for the above reasons, stands for

5 federal immigration purposes) triggers the “stop-time rule,” 8

6 U.S.C. § 1229b(d)(1), under which an alien’s continuous residency

7 or physical presence ends, for purposes of cancellation of

8 removal, on the date he commits a qualifying offense or on the

9 date a notice to appear is filed. Accordingly, Saleh’s period of

10 continuous residence ended, at the very latest, in 1993, after

11 only three years in the country. See generally Tablie v.

Gonzales, 471 F.3d 60, 61-62 (2d Cir. 2006).10 12

13 III. CONCLUSION

14 We have considered all of Saleh’s arguments on appeal and

15 find them to be without merit. For the foregoing reasons, we

16 deny Saleh’s petition for review. The pending motion for a stay

17 of removal in this case is denied as moot.