In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3611

MANUEL ESTRADA-RAMOS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A074-103-808

ARGUED MAY 24, 2010—DECIDED JULY 1, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

EVANS, Circuit Judges.

EVANS, Circuit Judge. The Department of Homeland

Security (DHS) initiated removal proceedings against

Manuel Estrada-Ramos in 2008. Estrada-Ramos moved

to terminate the proceedings, alleging that he was a

lawful permanent resident as of 1997. However, there

was a fly in the ointment: he was convicted of a criminal
2 No. 09-3611

At oral argument, we were told that the conviction was 1

for possession of cocaine with intent to sell.

offense in California in 1991. Although his conviction

was set aside pursuant to state law, DHS argued that it

remained a “conviction” for purposes of the Immigration

and Nationality Act (INA), rendering invalid EstradaRamos’ move to permanent resident status. An immigration judge (IJ) agreed with DHS and the Board of Immigration Appeals (BIA) affirmed. Estrada-Ramos now

petitions for review.

Estrada-Ramos is a 39-year old native and citizen of

Mexico. Immigration and Naturalization Service (now

DHS) adjusted his status to lawful permanent resident

on June 2, 1997. However, on May 17, 1991, EstradaRamos was convicted in California state court, after a

guilty plea, on a drug charge involving cocaine. He 1

was sentenced to one year in prison and five years of

probation. On May 15, 1997, his guilty plea was set

aside and his case was dismissed pursuant to California

Penal Code § 1203.4. For whatever reason, INS was

unaware that Estrada-Ramos had a conviction when

it adjusted his status.

Estrada-Ramos left the United States on an unknown

date and attempted to return through Laredo, Texas, in

October 2006. DHS granted him deferred inspection

and served him with a notice to appear in January 2008,

alleging that at the time INS adjusted his status, he was

not eligible for the change. DHS charged EstradaRamos with inadmissibility under INA § 237(a)(1)(A),
No. 09-3611 3

8 U.S.C. § 1227(a)(1)(A), as an alien with a controlled

substance conviction at the time of entry or adjustment

of status. He denied the charge of removability, arguing

that his adjustment to permanent resident status was

valid because his criminal conviction was expunged

under California law.

The IJ, in an oral decision, found that the 1991 conviction remained effective because it was dismissed for

ameliorative (i.e., rehabilitative) purposes not for any

procedural or substantial defects in the proceedings.

Consequently, the IJ deemed Estrada-Ramos ineligible

for relief under former INA § 212(c) and ineligible for

cancellation of removal under INA § 240A(a) or § 240A(b).

Estrada-Ramos appealed to the BIA, which affirmed the

IJ’s order.

On his petition for review, Estrada-Ramos argues that

the conviction is not effective for immigration purposes,

and thus, his status was properly adjusted to lawful

permanent resident. The government suggests that we

lack jurisdiction to review the removal order because

Estrada-Ramos committed a qualifying criminal offense

under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). We

lack jurisdiction to review removal orders of aliens removable under § 242(a)(2)(C) unless there is a valid

constitutional claim or question of law. Zamora-Mallari v.

Mukasey, 514 F.3d 679, 693-94 (7th Cir. 2008). Whether

an offense constitutes a “conviction” under the INA is

such a question. We review this question de novo, while

giving deference to the BIA’s reasonable interpretation

of the INA. Ali v. Ashcroft, 395 F.3d 722, 727 (7th Cir.
4 No. 09-3611

2005) (internal citations omitted). Under the INA, a

“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 (ii) the judge has ordered some

form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

If a conviction was vacated due to a procedural or

substantive defect in the underlying proceeding, it is no

longer effective for immigration purposes; however, if it

was vacated for rehabilitative purposes, it remains effective. Ali, 395 F.3d at 727; Matter of Pickering, 23 I. & N. Dec.

621, 624 (BIA 2003). Estrada-Ramos does not dispute

that he was convicted of cocaine possession with intent

to sell; nor does he claim there was any defect in the

California proceeding against him. Thus, the conviction

must have been set aside for ameliorative purposes.

Notwithstanding the conviction, Estrada-Ramos argues

that his lawful permanent resident status is valid because he did not commit fraud to obtain it. However,

the BIA has held that “lawfully admitted for permanent

residence” does not apply to aliens who “obtained their

permanent resident status by fraud, or had otherwise not

been entitled to it.” Matter of Koloamantangi, 23 I. & N. Dec.

548, 550 (BIA 2003) (emphasis added). A number of our

sister circuits have subsequently found the BIA’s inter-
No. 09-3611 5

The government argues that he failed to exhaust this argu- 2

ment to the agency; regardless, it fails on the merits.

7-1-10

pretation reasonable and have held that fraud and misrepresentation are not the sole bases upon which the

agency can conclude that an alien did not lawfully obtain

adjustment of status. De La Rosa v. DHS, 489 F.3d 551, 554-

55 (2d Cir. 2007); Savoury v. U.S. Attorney General, 449

F.3d 1307, 1317 (11th Cir. 2006); Arellano-Garcia v. Gonzales,

429 F.3d 1183, 1186-87 (8th Cir. 2005). We agree that to

be “lawfully admitted” the adjustment of status must be

in compliance with substantive legal requirements, not

mere procedural regularity. Savoury, 449 F.3d at 1316

(quoting Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983)).

Therefore, we agree with the BIA that Estrada-Ramos

was never “lawfully admitted” for permanent residence.

Estrada-Ramos also claims that he was deprived of his

statutory right to present evidence because he did not

have the opportunity to submit a certified case report.2

However, he does not show how the report would make

any material difference to the question of whether his

conviction counts for immigration purposes. In fact,

Estrada-Ramos’ counsel at oral argument admitted he

has not seen the document. Without knowing more

about the report, we cannot see how it affects the outcome of this case.

For these reasons, the petition for review is DENIED.