* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

June 22, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VICKERS VIRLEY FRITZGERALD

WAUGH, a/k/a Vickers Virley

Fitzgerald Waugh,

Petitioner,

v.

ERIC H. HOLDER, JR., United States

Attorney General,

Respondent. 

No. 10-9551

PETITION FOR REVIEW OF A DECISION OF THE

BOARD OF IMMIGRATION APPEALS

Submitted on the briefs:*

Hakeem Ishola, Ishola Tarin, P.L.L.C., West Valley City, Utah, for Petitioner.

David V. Bernal, Assistant Director, Tiffany L. Walters, Trial Attorney, and Tony

West, Assistant Attorney General, United States Department of Justice, Civil

Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior Circuit

Judge.
1 The IJ declined to address whether petitioner’s Utah conviction also

constituted a crime of violence, which would also be an aggravated felony that

would support removal under § 1227(a)(2)(A)(iii).

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McKAY, Circuit Judge.

Petitioner, a Jamaican citizen and lawful permanent resident of the United

States, petitions for review of the decision of the Board of Immigration Appeals

(BIA) ordering him removed. In August 2009, petitioner pled guilty in Utah state

court to one count of unlawful sexual contact with a minor, a third-degree felony

under Utah law. Following his conviction, the government instituted removal

proceedings, and the immigration judge (IJ) found petitioner removable on two

grounds: (1) for sexual abuse of a minor, which constitutes an aggravated felony

under 8 U.S.C. § 1101(a)(43)(A); and (2) for child abuse. The first ground made

petitioner removable under § 1227(a)(2)(A)(iii), and the second ground made him

removable under § 1227(a)(2)(E)(i).1

While petitioner’s removal proceedings were pending, the Supreme Court

issued its opinion in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1486

(2010), in which it held that, for a non-citizen defendant, the Sixth Amendment

right to effective assistance of counsel includes the right to be advised of the risk

of removal resulting from a guilty plea. Relying on Padilla, petitioner filed a
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motion to withdraw his guilty plea in state court, arguing he was not properly

advised that pleading guilty to the charge of unlawful sexual contact with a minor

would make him removable.

Petitioner also moved the IJ to terminate the removal proceedings. 

Petitioner argued that the government had to prove, as part of its burden to

establish grounds for removal by clear and convincing evidence, that the Utah

conviction underlying his removal comported with his right to effective assistance

of counsel as described in Padilla. Petitioner contended the government could

not meet this burden of proof, so the proceedings should be terminated. 

Alternatively, he asked the IJ to continue the proceedings until his motion to

withdraw his guilty plea was resolved in state court.

The IJ denied both requests. The IJ held that petitioner’s contention that he

was denied the effective assistance of counsel in connection with his guilty plea

was a collateral attack on his conviction that the IJ did not have authority to

consider and that should be resolved in the state court. The IJ further held that,

until it was vacated or overturned by the state court, petitioner’s conviction

constituted a valid conviction to which the IJ had to give full faith and credit. 

The IJ concluded the evidence established petitioner was convicted of unlawful

sexual contact with a minor and that the conviction made him removable under

§ 1227(a)(2)(A)(iii) and § 1227(a)(2)(E)(i). The IJ therefore ordered petitioner

removed.
-4-

Petitioner appealed the IJ’s order to the BIA, arguing the IJ should have

terminated the proceedings because the government could not meet its burden of

proof, or, at a minimum, should have continued the proceedings until the state

court challenge was resolved. Petitioner did not challenge the IJ’s determination

that the conviction, if valid, was grounds for removal under either

§ 1227(a)(2)(A)(iii) or § 1227(a)(2)(E)(i), and he does not challenge that

determination in his petition for review.

The BIA denied petitioner relief on appeal. Like the IJ, the BIA held that

petitioner’s arguments were in the nature of a collateral attack on his conviction

and could not be entertained by the IJ or the BIA. Further, it held that

petitioner’s pursuit of a collateral attack in state court and his contention that his

conviction would ultimately be invalidated based on Padilla did not undermine

the finality of his conviction for immigration purposes. The BIA noted

petitioner’s motion to withdraw his guilty plea was still pending in state court,

and held that, unless and until petitioner’s conviction was overturned by the state

court, it was final for immigration purposes and supported the removal order.

Petitioner makes essentially the same arguments in his petition for review

that he made to the IJ and the BIA, but couches them in constitutional terms,

arguing that he was denied due process in the agency proceedings. He does so, no

doubt, because our jurisdiction to review an order of removal against an

aggravated felon is significantly limited: we may review the removal order only
-5-

to the extent petitioner raises constitutional or legal challenges to the order, see

8 U.S.C. §§ 1252(a)(2)(C), (D).

Petitioner first argues that he was denied due process when the BIA

determined that he had been “convicted of a removable ‘aggravated felony’

offense, notwithstanding that the alleged conviction is not final in Utah state

court and the conviction was not in comport with the Sixth Amendment, given

that Petitioner’s defense counsel failed to disclose true immigration consequences

of the plea as required by Padilla.” Pet’r Opening Br. at 2-3. Petitioner’s

argument relies on two false premises: 1) that the pendency of the state court

proceedings challenging his guilty plea on Sixth Amendment grounds made his

conviction not final for immigration purposes; and 2) that Padilla expanded the

elements the government must prove to establish that an alien has been convicted

of a removable offense, to include proof that the underlying conviction did not

violate the Sixth Amendment.

At the outset, we note that since the BIA issued its decision, the Utah

courts have denied petitioner relief on his motion to withdraw his guilty plea. See

State v. Waugh, No. 20100737-CA, 2010 WL 4379465 (Utah App. Nov. 4, 2010)

(per curiam) (unpublished), cert. denied, 251 P.3d 245 (Utah 2011). Although it

appears that even petitioner would agree his conviction is now final, we conclude

the resolution of the state court proceedings did not moot petitioner’s arguments

about the use of his Utah conviction to support removal. First, even if petitioner
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would concede that his conviction is now final, that would not answer the

question whether the conviction was final at the time the IJ entered the removal

order. Second, the Utah proceedings did not establish whether petitioner’s Sixth

Amendment rights were violated, because the Utah Court of Appeals affirmed the

denial of relief solely on the ground that petitioner’s motion to withdraw his

guilty plea was untimely. See id. at *1. And in any event, under petitioner’s

theory, resolution of his challenge to his conviction by the state court–even on the

merits–would not answer the question whether the IJ could rely on petitioner’s

conviction to support removal absent proof from the government that the

conviction comported with the Sixth Amendment under Padilla.

We turn, then, to petitioner’s arguments, beginning with the government’s

burden of proof. The government bears the burden of proving by clear and

convincing evidence that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A). 

When removal is based on a criminal conviction, the government may prove the

existence of the conviction through a variety of documents or records, including

those the government relied on here. See 8 U.S.C. § 1229a(c)(3)(B); Admin R. at

229-237 (containing the information, the amended information, and a certified

copy of the minutes of sentencing and the judgment, sentence and commitment

notice).

In determining whether a conviction supports removal, “[i]mmigration

authorities must look solely to the judicial record of final conviction and may not
-7-

make their own independent assessment of the validity of [the alien’s] guilty

plea. . . . As an administrative agency, the INS has no power to adjudicate the

validity of state convictions underlying deportation proceedings.” Trench v. INS,

783 F.2d 181, 184 (10th Cir. 1986) (internal quotation marks omitted). 

Accordingly, “an alien cannot collaterally attack the legitimacy of a state criminal

conviction in a deportation proceeding.” Id.

In Trench, the alien challenged the validity of his conviction on the same

ground petitioner does here: his counsel did not advise him properly about the

risk of removal arising from his guilty plea. Id. at 183. We held that even if trial

counsel’s allegedly incorrect advice violated the Sixth Amendment (an issue on

which the circuit courts were then divided), the alien could not challenge the

validity of his conviction in the immigration proceedings; he had to bring his

challenge in state court. Id. at 183-184. The Sixth Circuit recently considered a

similar challenge based specifically on Padilla and held the alien’s claim of

ineffective assistance was “not a proper one in immigration proceedings. . . . 

[A]n alien petitioner may not collaterally attack a criminal conviction that serves

as the basis for the [government’s] initiation of removal proceedings against the

alien . . . on review from a decision of the BIA.” Garcia v. Holder, 638 F.3d 511,

518 (6th Cir. 2011).

Petitioner himself acknowledges that an alien cannot attack the legitimacy

of a state court conviction in immigration proceedings. See Pet’r Opening Br. at
2 The Court concluded counsel’s advice fell below an objective standard of

reasonableness under the first prong of Strickland, but remanded the action to the

state court to determine whether the defendant could establish the requisite

(continued...)

-8-

20 n.11. To circumvent this limitation, petitioner seeks to put the burden on the

government to prove as part of its case that his conviction was constitutional

under the Sixth Amendment. He contends that the Supreme Court’s decision in

Padilla requires this expansion of the government’s burden.

At issue in Padilla was whether the state court properly denied the alien

defendant post-conviction relief on the ground that “the Sixth Amendment’s

guarantee of effective assistance of counsel does not protect a criminal defendant

from erroneous advice about deportation because it is merely a ‘collateral’

consequence of his conviction.” 130 S. Ct. at 1478. The Supreme Court

concluded the state court erred, holding that, before a non-citizen criminal

defendant enters a guilty plea, his counsel has a duty under the Sixth Amendment

to inform him “whether his plea carries a risk of deportation.” Id. at 1486. 

Having determined the defendant’s counsel had a duty under the Sixth

Amendment to provide accurate advice about the risk of deportation, the Court

applied the familiar two-prong test of Strickland v. Washington, 466 U.S. 668,

688, 694 (1984), to determine whether counsel’s erroneous advice deprived the

defendant of the effective assistance of counsel. Padilla, 130 S. Ct. at

1482-1484.2
2

(...continued)

prejudice under the second prong. Padilla, 130 S. Ct. at 1482-84, 1485.

-9-

In reaching its conclusion that the right to effective assistance of counsel

includes the right to accurate advice about the risk of deportation, the Court noted

that significant changes in immigration law over the past 90 years “have

dramatically raised the stakes of a noncitizen’s criminal conviction” such that,

today, “removal is practically inevitable” for any noncitizen convicted of a

removable offense. Id. at 1480. “[A]s a matter of federal law,” the Court said,

“deportation is an integral part–indeed, sometimes the most important part–of the

penalty that may be imposed on noncitizen defendants who plead guilty to

specified crimes.” Id. (footnote omitted). Petitioner seizes on this language to

argue that because deportation is an integral part of the penalty that may be

imposed in a criminal proceeding, the government must prove in an immigration

proceeding that the alien received constitutionally adequate advice about the

immigration consequences of his plea.

Petitioner does not suggest the government must prove a criminal alien’s

conviction is free of any other constitutional infirmities, even others under the

Sixth Amendment. And, unlike petitioner, we see nothing in Padilla that would

create the unique burden petitioner proposes. Padilla merely established another

way in which a criminal defendant’s Sixth Amendment rights may be violated. 

The Court did not suggest that advice about the risk of deportation is
-10-

categorically different from other advice that is constitutionally required, and it

applied the same Strickland analysis to the defendant’s claim that applies to other

claims of ineffective assistance of counsel.

Moreover, petitioner ignores a fundamental limitation: neither the IJ nor

the BIA has authority to adjudicate the constitutionality of an underlying criminal

conviction. See Trench, 783 F.2d at 184. If the government had to prove an

alien’s underlying conviction satisfied the Sixth Amendment under Padilla, the IJ

would necessarily have to determine whether the conviction was constitutional as

part of his assessment of the evidence supporting removal. And to determine

whether a conviction comported with Padilla, in particular, the IJ would likely

have to hold an evidentiary hearing to determine what advice, if any, the alien’s

criminal defense counsel provided. Inserting these issues into immigration

proceedings “could not, as a practical matter, assure a forum reasonably adapted

to ascertaining the truth of the claims raised. It could only improvidently

complicate the administrative process.” Zinnanti v. INS, 651 F.2d 420, 421

(5th Cir. 1981) (per curiam).

Further, petitioner would have the government prove a negative–the lack of

a Sixth Amendment violation–by clear and convincing evidence, and do so when

few, if any, of the operative facts about defense counsel’s advice were within its

knowledge. Finally, requiring the government to prove–and the IJ to find–that the

alien’s underlying conviction comported with the Sixth Amendment could lead to
-11-

contrary results in the administrative proceedings and any state or federal court

proceedings challenging the alien’s conviction. Thus, from both a legal and a

practical standpoint, petitioner’s contention that “the Government must prove as

an element of ‘conviction’ whether such was had in comport with the Sixth

Amendment to the United States Constitution,” Pet’r Opening Br. at 26, is

untenable.

Petitioner’s contention that his conviction was not final in light of the

pending state court proceedings is likewise unsupportable. The Immigration and

Nationality Act defines “conviction” for immigration purposes 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). We recently explained that “Congress adopted [this]

definition of ‘conviction’ in 1996 specifically to supplant a prior BIA

interpretation that had required deportation to wait until direct appellate review

(though never collateral review) of the conviction was exhausted or waived.” 

United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir.), cert. denied,

131 S. Ct. 368 (2010). Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who

is convicted of an aggravated felony at any time after admission is deportable.”
-12-

“From this, it follows that an alien is lawfully deportable as soon as a formal

judgment of guilt is entered by a trial court.” Adame-Orozco, 607 F.3d at 653. 

Thus, “while the alien may have the right to pursue appellate or collateral relief

for an aggravated felony conviction under various provisions of state and federal

law, the government need not wait until all these avenues are exhausted before

deporting him.” Id.; see also Paredes v. Att’y Gen. of U.S., 528 F.3d 196, 198-99

(3d Cir. 2008) (holding that “pendency of post-conviction motions or other forms

of collateral attack . . . does not vitiate finality [for removal purposes], unless and

until the convictions are overturned as a result of the collateral motions”)

(collecting cases). Nothing in Padilla alters these long-standing principles. We

therefore reject petitioner’s contention that the IJ and BIA erred in relying on his

Utah conviction to support his removal.

Though he devotes little attention to it, petitioner also argues the IJ and

BIA erred in denying his request to continue the removal proceedings until his

motion to withdraw his guilty plea was resolved in state court. Petitioner

attempts to frame this argument as a denial of due process, suggesting the BIA

ignored its own (unidentified) precedents. It appears petitioner’s true objection,

however, is to the way the IJ and BIA exercised their discretion: they should

have found the circumstances warranted a continuation. This challenge raises

neither a constitutional nor a legal issue, so we are without jurisdiction to review
-13-

it. See 8 U.S.C. § 1252(a)(2)(C), (D). And in any event, the issue is moot now

that the state court proceedings have concluded.

The petition for review is denied.