07 -56 29 -ag

Roman v. Mukasey 1 UNI TEDSTATE S COURT OF APPEALS 2 3 FOR THE S ECOND CIRCUI T 4 5 Aug ustTe rm, 20 08 6 7 (Ar gue d: Oct obe r 3 , 2 008 De cid ed: Ja nua ry 21, 20 09) 8 9 Doc ketNo . 0 7-5 629 -ag 10 11 12 - - - - - - - - - - - - - - - - - - - - x 13 14 EDDY JOHNNY ROMAN, 15 Petitioner, 16 17 18 -v.- 07-5629-ag 19 20 MICHAEL B. MUKASEY, Attorney General 21 of the United States, 22 23 Respondent. 24 25 - - - - - - - - - - - - - - - - - - - - x

Bef ore : JAC OBS , C hie f Judg e, MIN ER andSO TOMAYO R, 26 27 Cir cui t Judg es. 28 29 Petitioner Eddy Johnny Roman seeks review of a November 30 21, 2007 order of the Board of Immigration Appeals affirming 31 the May 17, 2006 decision of Immigration Judge Jeffrey S. 32 Chase finding Roman inadmissible and ordering him removed to 33 the Dominican Republic. Rom an arg ues , p rin cip all y, tha t t he 34 Imm igr ati on Jud ge err ed in rel yin g o n R oma n’s admis sio ns 35 (th rou gh his la wye r) as evi den ce of a p rio r c onv ict ion 36 est abl ish inghi s r emo vab ili ty. T he pet iti on is den ied .2 ALAN MICHAEL STRAUSS (Stanley H. 1 2 Wallenstein, on the brief), New 3 York, New York, for Petitioner . 4 5 GREGORY M. KELCH, Attorney, U.S. 6 Department of Justice (Gregory 7 G. Katsas, Acting Assistant 8 Attorney General; James E. 9 Grimes, Senior Litigation 10 Counsel, on the brief), Washington, DC , f or Res pon den t. 11 12 13 PERCU RIAM: 14 15 Petitioner Eddy Johnny Roman, a native and citizen of 16 the Dominican Republic and a lawful permanent resident of 17 the United States, seeks review of a November 21, 2007 order 18 of the Board of Immigration Appeals (“BIA”) affirming the 19 May 17, 2006 decision of Immigration Judge (“IJ”) Jeffrey S. 20 Chase finding Roman inadmissible and ordering him removed to 21 the Dominican Republic. In re Eddy Johnny Roman, No. A 40 22 520 891 (B.I.A. November 21, 2007), aff’g No. A 40 520 891 23 (Immig. Ct. N.Y. City May 17, 2006). Roman argues that the 24 IJ was prohibited, as a matter of law, from relying entirely 25 on admissions made by Roman (through his lawyer) to 26 establish his removability based on a prior conviction. We 27 conclude that this argument has no merit. Accordingly, the 28 petition is denied. 29Inth e c ase ofanal ienno t a dmi tte d t o t he Uni ted 1 Sta tes , t he ali en is “re mov abl e” if he or she is ina dmi ssi ble un der8 U.S .C. § 118 2. Se e 8 U. S.C . § 1 229 a(e )(2 )(A ). 3 1 I 2 On or about January 10, 2004, Roman arrived at John F. 3 Kennedy Airport in New York City and applied for admission 4 as a returning lawful permanent resident. The Department of 5 Homeland Security (“DHS”) denied Roman admission. On June 6 5, 2004, DHS served Roman with a Notice to Appear (“NTA”) 7 stating that he was inadmissible as an “arriving alien” 8 because he had been convicted of the crime of attempted 9 criminal sale of a controlled substance in the third degree 10 in violation of Section 110/220.39 of the New York State 11 Penal Law. DHS ch arg ed Rom an wit h r emo vab ili ty und er INA 12 § 2 12( a)( 2)( A)( i)( II) , whic h s tat es tha t “any alien 13 convicted of, or who admits having committed, or who admits 14 committing acts which constitute the essential elements of 15 . . . a violation of . . . any law or regulation of a State 16 . . . relating to a controlled substance” shall be 17 inadmissible and ineligible for entry into the United 18 States. 8 U .S. C. § 1 182 (a) (2) (A) (i) (II ) . 1 19 Roman first appeared before an IJ on March 30, 2005. 20 At that hearing, Roman’s attorney stated that “we admit4 1 allegations one through three, and the basis for charge of 2 removal.” At Rom an’ s n extap pea ran ce, onJu ly 27, 20 05, hi s 3 att orn ey reques tedan d w as gra nte d asi x-m ont h c ont inu anc e 4 to aff ordti me to pur sue a state court order vacating 5 Roman’s conviction . 6 Whe n R oma n n extap pea redbe for e t he IJ on Jan uar y 2 5, 7 200 6, he exp lai nedth at the mo tio n t o v aca te his st ate 8 con vic tio n w as sti ll pen din g. Th e I J g ran teda con tin uan ce 9 forRo mantore sea rchwh eth er a g rou nd forca nce lla tio n o f 10 rem ova l e xis ted . 11 At Rom an’ s f our th (an d f ina l) app ear anc e, on May17 , 12 200 6, Rom an’ s c oun sel expla ine d t hatsh e h ad res ear che d 13 Rom an’ s a tte mpt ed cri min al sal e c onv ict ionan d c onc lud ed 14 tha t i t w as an agg rav ate d f elo ny ren der ingRo manin eli gib le 15 forre lie f f romre mov al. T he IJ add res sedRo mandi rec tly 16 andexpla ine d t hathe wa s e nte rin g a n o rde r o f r emo val ba sed 17 on Rom an’ s p rio r c onv ict ion , b ut tha t R oma n c oul d s eekto 18 reo penth e d epo rta tio n p roc eed ingifth e c onv ict ionwa s 19 sub sequen tlyva cat ed. R oma n a ckn owl edg ed the IJ ’s sta tement 20 wit hou t o bje cti on. 21 225 1 II 2 When, as here, the BIA adopts the decision of the IJ 3 and supplements the IJ’s decision, this Court reviews the 4 decision of the IJ as supplemented by the BIA. See Yan Chen 5 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review 6 the agency’s factual findings under the substantial evidence 7 standard, treating them as “conclusive unless any reasonable 8 adjudicator would be compelled to conclude to the contrary.” 9 8 U.S.C. § 1252(b)(4)(B); see, e.g., Shu Wen Sun v. BIA, 510 10 F.3d 377, 379 (2d Cir. 2007). We review underlying 11 questions of law and the application of law to fact de novo. 12 See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir. 2008). 13 Because Roman has been convicted of a 14 controlled-substance offense, we lack jurisdiction to review 15 his petition, except to the extent he presents 16 constitutional claims or questions of law. See 8 U.S.C. 17 § 1252(a)(2)(C)-(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 18 434 F.3d 144, 151 (2d Cir. 2006). Roman raises one legal 19 question: was the IJ prohibited from relying on Roman’s own 20 admissions (through his attorney) as the sole evidence 21 establishing removability based on a prior conviction? 226 1 The actions of the IJ were explicitly authorized by 2 8 C.F.R. § 1240.10(c), which provides (in relevant part): 3 The immigration judge [presiding over a 4 removal proceeding] sh a l l require the 5 respondent to plead to the notice to appear 6 by s t a t i ng whether he or she admits or 7 den i e s the factual allegations and his or 8 her removability under t he charges 9 contained therein. If the respondent 10 admits the factual allegations and admits 11 his or her remov a b i l ity under the charges 12 and the immigration judge is satisfied that 13 no issues o f law or fact remain, the 14 immigration judge may determine that 15 removability as charged has been 16 established by the admissions of the 17 respondent. 18 19 8 C.F.R. § 1240.10(c). Roman does not argue that issues of 20 fact or law remained that should have prevented the IJ from 21 ruling. 22 Roman argues that aliens and their attorneys are often 23 confused about prior convictions and that the government 24 should be required in all cases to submit evidence proving a 25 conviction. But Roman does not allege that the admissions 26 were inaccurate or that the lawyer representing him before 27 the IJ was ineffective. We decline Roman’s invitation to 28 hold that an alien’s admissions cannot constitute clear and 29 convincing evidence of removability in a case in which 30 removability is premised on a prior conviction. See Singh 31 v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 78 (2d Cir. 32 2008) (“Because of [the petitioner’s] status as a permanent7 1 resident, the government bears the burden of proof, which it 2 could only meet by adducing clear, unequivocal, and 3 convincing evidence that the facts alleged as grounds for 4 deportation are true.” (quotation marks and citations 5 omitted)); see also Barragan-Lopez v. Mukasey, 508 F.3d 899, 6 905 (9th Cir. 2007) (“Barragan-Lopez’s own admissions 7 constitute clear, convincing, and unequivocal evidence, and 8 therefore we conclude that the government met its 9 evidentiary burden of demonstrating removability.”). 10 The NTA prepared by DHS identified the date and nature 11 of Roman’s state convictions, as well as the statutory basis 12 for his removal. There is no legal or constitutional error 13 in the IJ and BIA’s determination that Roman’s admission of 14 removability--which explicitly admitted the allegations in 15 the NTA “and the basis for the charge of removal”--satisfied 16 the government’s evidentiary burden. “[W]hen an admission 17 is made as a tactical decision by an attorney in a 18 deportation proceeding, the admission is binding on his 19 alien client and may be relied upon as evidence of 20 deportability.” Matter of Velasquez, 19 I. & N. Dec. 377, 21 382 (B.I.A. 1986); cf. Ali v. Reno, 22 F.3d 442, 446 (2d 22 Cir. 1994) (alien bound by counsel’s admission that a timely 23 answer had not been filed). 24 For the foregoing reasons, the petition is denied.