Roman v. Mukasey, No. 07-5629 (2d Cir. 2009)
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07-5629-ag Roman v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: October 3, 2008 Decided: January 21, 2009) Docket No. 07-5629-ag - - - - - - - - - - - - - - - - - - - -x EDDY JOHNNY ROMAN, Petitioner, -v.- 07-5629-ag MICHAEL B. MUKASEY, Attorney General of the United States, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, MINER and SOTOMAYOR, Circuit Judges. 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. 34 Immigration Judge erred in relying on Roman s admissions 35 (through his lawyer) as evidence of a prior conviction 36 establishing his removability. Roman argues, principally, that the The petition is denied. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ALAN MICHAEL STRAUSS (Stanley H. Wallenstein, on the brief), New York, New York, for Petitioner . GREGORY M. KELCH, Attorney, U.S. Department of Justice (Gregory G. Katsas, Acting Assistant Attorney General; James E. Grimes, Senior Litigation Counsel, on the brief), Washington, DC , for Respondent. PER CURIAM: 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. 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). 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. 27 conclude that this argument has no merit. 28 petition is denied. In re Eddy Johnny Roman, No. A 40 29 2 Roman argues that the We Accordingly, the 1 2 I 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. 5 Homeland Security ( DHS ) denied Roman admission. 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 The Department of On June 10 in violation of Section 110/220.39 of the New York State 11 Penal Law. 12 § 212(a)(2)(A)(i)(II), which states that 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. 1 19 20 DHS charged Roman with removability under INA 8 U.S.C. § 1182(a)(2)(A)(i)(II). Roman first appeared before an IJ on March 30, 2005. At that hearing, Roman s attorney stated that we admit 1 In the case of an alien not admitted to the United States, the alien is removable if he or she is inadmissible under 8 U.S.C. § 1182. See 8 U.S.C. § 1229a(e)(2)(A). 3 1 allegations one through three, and the basis for charge of 2 removal. 3 attorney requested and was granted a six-month continuance 4 to afford time to pursue a state court order vacating 5 Roman s conviction . 6 At Roman s next appearance, on July 27, 2005, his When Roman next appeared before the IJ on January 25, 7 2006, he explained that the motion to vacate his state 8 conviction was still pending. 9 for Roman to research whether a ground for cancellation of 10 11 The IJ granted a continuance removal existed. At Roman s fourth (and final) appearance, on May 17, 12 2006, Roman s counsel explained that she had researched 13 Roman s attempted criminal sale conviction and concluded 14 that it was an aggravated felony rendering Roman ineligible 15 for relief from removal. 16 and explained that he was entering an order of removal based 17 on Roman s prior conviction, but that Roman could seek to 18 reopen the deportation proceeding if the conviction was 19 subsequently vacated. 20 without objection. The IJ addressed Roman directly Roman acknowledged the IJ s statement 21 22 4 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). 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 We review underlying 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. 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). 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? 22 5 See 8 U.S.C. Roman raises one legal 1 2 The actions of the IJ were explicitly authorized by 8 C.F.R. § 1240.10(c), which provides (in relevant part): 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 8 C.F.R. § 1240.10(c). 20 fact or law remained that should have prevented the IJ from 21 ruling. 22 The immigration judge [presiding over a removal proceeding] shall require the respondent to plead to the notice to appear by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein. If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged has been established by the admissions of the respondent. Roman does not argue that issues of 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. 26 were inaccurate or that the lawyer representing him before 27 the IJ was ineffective. 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. 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 permanent But Roman does not allege that the admissions We decline Roman s invitation to 6 See Singh 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. 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. 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. 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 There is no legal or constitutional error [W]hen an admission Matter of Velasquez, 19 I. & N. Dec. 377, For the foregoing reasons, the petition is denied. 7
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