Danso v. Gonzales

United States Court of Appeals

Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FILED

FOR THE FIFTH CIRCUIT June 15, 2007

_____________________

Charles R. Fulbruge III

No. 05-60919

_____________________ Clerk

MARTY DANSO,

Petitioner,

v.

ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,

Respondent.

---------------------

Petition for Review of an Order of the

Board of Immigration Appeals

---------------------

Before KING, WIENER, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Marty Danso seeks review of an order of the Board

of Immigration Appeals (“BIA”) adopting and affirming the

decision of an immigration judge (“IJ”) that denied Danso’s

requests for cancellation of removal and adjustment of status,

and ordered him removed from the United States. We affirm.

I. FACTS & PROCEEDINGS

Danso is citizen of Ghana. In 1982, he was convicted in

England of a crime involving a controlled substance and sentenced

to twelve months of imprisonment.1 Two years later, Danso

1

The record does not reflect the exact nature of Danso’s

crime, but he was convicted in the Manchester Crown Court for

Fraudulent Evasion of Prohibition on Importation of Controlled

Drug (Cannabis).

entered the United States without inspection. After leaving

briefly in 1989, he returned, applied for admission, and was

paroled into the United States for a period of one year.

In 2002, Danso received a Notice to Appear, charging him

with removability as (1) an alien who has been convicted of an

offense involving a controlled substance,2 and (2) a “trafficker”

of controlled substances.3 Danso then filed an immigrant visa

petition with the United States Citizenship and Immigration

Services (“USCIS”) and an application with the IJ for

cancellation of removal with adjustment of status. Danso was

later charged with removability as an alien not in possession of

a valid immigrant visa.4

At a preliminary hearing before an IJ, Danso admitted his

drug-related conviction in England, and the IJ sustained the

charge of removability based on that conviction. The IJ did not

sustain the charge based on Danso’s alleged “trafficker” status.

At a subsequent hearing, Danso conceded removability for failure

to maintain a valid immigrant visa, and the IJ sustained that

charge of removability as well.

2

8 U.S.C. § 1182(a)(2)(A)(i)(II).

3

§ 1182(a)(2)(C).

4

§ 1182(a)(7)(A)(i)(I),.

2

At his merits hearing, Danso requested that the IJ suspend

removal proceedings to allow the USCIS to adjudicate Danso’s

pending immigrant visa petition.5 The IJ issued an oral decision

denying Danso’s requests for relief and ordering him removed from

the United States. Specifically, the IJ (1) denied Danso’s

request for adjustment of status (or a continuance to pursue

same), because, as an arriving alien in removal proceedings, he

was ineligible to apply for adjustment of status6; and (2) denied

Danso’s requests for cancellation of removal because his

inadmissibility under § 1182(a)(2)(A)(i)(II) barred that relief.

Danso filed an appeal with the BIA, asserting that the IJ

wrongly determined that Danso was ineligible for cancellation of

removal based on his prior conviction, because that conviction

was expunged by effect of British law. This expungement, Danso

argued, is analogous to an expungement obtained under the Federal

First Offenders Act (“FFOA”), which provides that, if specified

conditions are met, the disposition of a federal simple

5

Danso did not make a formal request for termination, but

raised the issue of terminating proceedings if his immigrant visa

application was approved. The IJ addressed Danso’s request as

both a request for a continuance and a request for termination.

6

The IJ relied on 8 C.F.R. § 1245.1(c) (2006), which

states: “The following categories of aliens are ineligible to

apply for adjustment of status to that of lawful permanent

resident . . . (8) Any arriving alien who is in removal

proceedings pursuant to [8 U.S.C. § 1225(b)(1) or § 1229].”

3

possession offense will have no legal effect.7 He also argued

that the IJ erred in determining that Danso was ineligible for

adjustment of status as an arriving alien in removal proceedings.

After the BIA adopted and affirmed the IJ’s decision, Danso filed

this petition for review.

II. ANALYSIS

Danso contends that (1) the BIA violated his right to equal

protection by not treating his expunged foreign conviction the

same as it would a conviction expunged under the FFOA, and (2)

the BIA erred as a matter of law in holding that Danso was

ineligible for cancellation of removal and adjustment of his

status.

A. Jurisdiction

Under 8 U.S.C. § 1252(a)(2)(C), we do not have jurisdiction

to review “a final order of removal against an alien who is

removable by reason of having committed a criminal offense

covered in section 1182(a)(2).” Under § 1252(a)(2)(D), however,

we retain jurisdiction to review "constitutional claims or

questions of law." As Danso’s petition for review presents both

a constitutional equal-protection claim and a separate question

of law, we have jurisdiction to review it on the merits.

7

18 U.S.C. § 3607.

4

B. Standard of Review

We review an alien’s constitutional claim de novo.8 We also

review questions of law de novo, deferring, however, to the BIA's

interpretation of the statutes and regulations it administers.9

C. Merits

1. Danso’s Equal-Protection Claim

a. Dillingham v. INS

Danso bases his equal-protection claim on Dillingham v. INS,

a case in which the Ninth Circuit held that the constitutional

requirements of due process and equal protection prohibit the

government from denying “rehabilitation”10 to an alien previously

8

United States v. Lopez-Vasquez, 227 F.3d 476, 481 (5th

Cir. 2000).

9

De La Paz Sanchez v. Gonzales, 473 F.3d 133, 135 (5th Cir.

2006).

10

The broad term “rehabilitation” describes the effect of a

variety of state laws allowing persons found guilty of specified

crimes to have their records cleared, usually based on their good

behavior for a designated time following the finding of guilt.

Lujan-Armendariz v. INS, 222 F.3d 728, 734 n.11 (9th Cir. 2000).

There are two basic types of rehabilitative schemes. In one, a

judgment of conviction is entered, but then erased after the

defendant has served a period of probation or imprisonment. Id.

In the other, which is referred to as “deferred adjudication,” no

formal judgment of guilt is ever entered. Instead, after the

defendant pleads or is found guilty, entry of conviction is

deferred, and after a period of good behavior, the charges are

dismissed and the defendant is discharged. Id. When referring to

both types of laws, we often use the term “expungement.” As did

the Ninth Circuit in Lujan-Armendariz, “[w]e realize that

5

convicted of a simple possession offense and rehabilitated under

foreign law, if his post-conviction conduct would qualify him for

expungement under the FFOA.11 We turn therefore, to the

applicability of the Dillingham decision to the instant case.

i. England’s Rehabilitation of Offenders Act

As Danso does here, Dillingham contended that his conviction

had been expunged by operation of England’s Rehabilitation of

Offenders Act (“ROA”). The ROA provides that a conviction is

treated as “spent,” viz. expunged, if an offender complies with

his sentence and is not thereafter convicted of an offense within

a statutorily specified time.12 The duration of the

‘expungement’ is to some extent a misnomer, because under a

deferred adjudication statute there is no conviction to expunge,

as no conviction is ever entered. However, even in such cases,

certain findings or other records may be expunged. More

important, the use of the term ‘expungement’ significantly

facilitates our discussion. Thus, while the federal law which we

describe in some detail-the Federal First Offender Act-is a

deferred adjudication law, rather than a vacatur or set-aside

law, we will sometimes use the term “expungement” when referring

to what occurs under that law, as well as under the various types

of state statutes.” Id.

11

267 F.3d 996, 1006-07 (9th Cir. 2001).

12

Rehabilitation of Offenders Act, 1974, c. 53, § 1 (Eng.).

The Act provides, in pertinent part, that

(1) Subject to subsection (2) below, where an

individual has been convicted, whether before or after

the commencement of this Act, of any offence or

offences, and the following conditions are satisfied,

that is to say--

6

rehabilitative period depends on the length of the original

sentence and the age of the offender, but not on the nature of

the original offense.13 After meeting the statutory

requirements, “a person who has become a rehabilitated person . .

. shall be treated for all purposes in law as a person who has

not committed or been charged with or prosecuted for or convicted

of or sentenced for the offence or offences which were the

subject of that conviction.”14

(a) he did not have imposed on him in respect of that

conviction a sentence which is excluded from

rehabilitation under this Act; and

(b) he has not had imposed on him in respect of a

subsequent conviction during the rehabilitation period

applicable to the first-mentioned conviction in

accordance with section 6 below a sentence which is

excluded from rehabilitation under this Act;

then, after the end of the rehabilitation period so

applicable . . . that individual shall for the purposes

of this Act be treated as a rehabilitated person in

respect of the first-mentioned conviction and that

conviction shall for those purposes be treated as

spent.

13

See id. § 5. Only convictions resulting in sentences of

fewer than 30 months can be rehabilitated under the ROA. Id.

Dillingham was over eighteen when convicted of simple possession

of marijuana, and he received only a fine. Under the ROA, his

conviction would be regarded as “spent” after five years. Danso

was over eighteen when he was convicted and sentenced to twelve

months in prison. His conviction would be regarded as “spent”

after ten years. Id. The Attorney General does not dispute that

Danso has not been convicted of any crime since his 1982 offense.

14

Id. § 4.

7

ii. Federal First Offenders Act

The FFOA provides that a court may place a first-offender

convicted of simple possession under 21 U.S.C. § 844 on probation

for up to one year without entering a judgment of conviction.15

If the offender complies with the terms of probation, the court

must dismiss the proceedings against him and discharge him from

probation.16 If an offender subject to such a disposition was

under the age of twenty-one at the time he committed the offense,

the court must, on application of the offender, direct that all

references to criminal proceedings against him be expunged from

official records.17 After such an expungement, the disposition

“shall not be considered a conviction for the purpose of a

disqualification or a disability imposed by law upon conviction

of a crime, or for any other purpose.”18

iii. The Ninth Circuit’s Reasoning

In resolving Dillingham’s equal-protection claim, the Ninth

Circuit first recognized that “a classification neither involving

fundamental rights nor proceeding along suspect lines is accorded

a strong presumption of validity,” and thus is subject to

15

18 U.S.C. § 3607(a).

16

Id.

17

§ 3607(c).

18

§ 3607(b).

8

rational basis review.19 The court cited its own precedent which

established that (1) expungement under the FFOA applies to

removal proceedings,20 (2) “persons who received the benefit of a

state expungement law were not subject to deportation as long as

they could have received the benefit of the [FFOA] if prosecuted

under federal law,”21 and (3) “persons found guilty of a drug

offense who could not have benefited from the FFOA were not

entitled to receive favorable immigration treatment, even if they

qualified for rehabilitation under state law.”22

The court stated that “the [BIA’s] categorical decision not

to recognize foreign expungements for simple drug possession

offenses did result in differential treatment between

[Dillingham] and persons whose federal and state expungements of

identical crimes were honored by the INS.”23 After finding

differential treatment, the court examined whether the difference

was supported by a rational basis. It concluded that “the

19

Dillingham, 267 F.3d at 1005 (quoting from Heller v. Doe,

509 U.S. 312, 319 (1993)).

20

Id. (citing Lujan-Armendariz, 222 F.3d at 735).

21

Id. at 1006 (quoting Lujan-Armendariz, 222 F.3d at 738)

(emphasis in original).

22

Id. (citing Paredes-Urrestarazu v. INS, 36 F.3d 801, 812

(9th Cir. 1994)) (emphasis added).

23

Id. at 1007.

9

government’s decision establishing an irrebuttable presumption

against the validity of foreign expungements [is] unacceptably

overbroad,” and its purported interest in greater administrative

efficiency does not provide a rational basis for “precluding

Dillingham from eligibility for adjustment of status, while

permitting aliens convicted domestically of identical offenses

(and rehabilitated under similar state and federal rehabilitative

statues) to seek such relief.”24

Finally, the Dillingham court addressed whether the BIA’s

interpretation of the term “conviction” in 8 U.S.C. §

1101(a)(48)(A), which was enacted after the FFOA, was entitled to

Chevron deference and effectively superseded the FFOA’s

applicability to removal cases.25 The court concluded that,

because the later immigration law did not repeal the FFOA in

whole or in part, the FFOA unambiguously precluded the

government’s interpretation, making Chevron deference

unwarranted.26

b. The BIA’s Decision

The BIA regarded Danso’s contention that his conviction was

expunged under British law as “irrelevant,” because the ROA “was

24

Id. at 1011.

25

Id.

26

Id.

10

clearly rehabilitative in nature” and did not remove the

disposition of Danso’s criminal offense from the ambit of §

1101(a)(48)(A)’s definition of “conviction.” The BIA also noted

that Danso failed to offer any evidence that his conviction was

eliminated “on the merits,” and ruled that it continued to render

him inadmissible under § 1182(a)(2)(A)(i)(II).

c. Merits

i. “Conviction” under Immigration Law

We are satisfied that the BIA correctly determined that

Danso’s British criminal offense resulted in a “conviction,” as

that term is defined by § 1101(a)(48)(A), which states:

The term “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.27

None disputes that Danso pleaded guilty to the drug offense in

England, thus satisfying the plain language of subsection (i) of

the foregoing definition.

27

Emphasis added.

11

ii. Effect of Foreign Expungement

We agree with the Ninth Circuit’s observation that “[a]s a

general rule, the BIA does not recognize expungements of

controlled substance offenses for federal immigration

purposes.”28 We also agree that, in enacting the FFOA, “Congress

carved out a narrow exception for [federal] simple possession

offenses.”29 We may reverse the BIA’s order in this case,

however, only if we also accept each of the following

propositions: (1) The definition of “conviction” as set forth in

§ 1101(a)(48)(A) does not preclude the applicability of the FFOA

in immigration cases; (2) Equal protection prohibits the

government from treating an alien whose conviction is expunged

under foreign law differently from one whose conviction is

expunged under the FFOA, if the former alien would have been

eligible for expungement under the FFOA had he been prosecuted in

federal court; and (3) Danso would have been eligible for

expungement under the FFOA had he been prosecuted in federal

court.

(a) FFOA in the Immigration Context

Regarding the first of those propositions, we have

previously expressed “substantial doubt whether the FFOA controls

28

Dillingham, 267 F.3d at 1005.

29

Id.

12

over the subsequently enacted § 1101(a)(48)(A).”30 That

section’s definition of “conviction” contemplates situations in

which “adjudication of guilt has been withheld,” but the court

“has ordered some form of punishment, penalty, or restraint on

the alien's liberty to be imposed.” This definition is broad

enough to encompass dispositions handled under most deferred

adjudication/expungement schemes, including the FFOA. For

example, under the FFOA, only an offender who was placed on

probation and thereafter met the terms of his probation will have

the charges against him dismissed and his records expunged.31

Despite the eventual expungement, however, such an offender’s

liberty was nonetheless restrained, as contemplated by §

1101(a)(48)(A).

It is certainly plausible, then, to regard § 1101(a)(48)(A)

as superseding or limiting the scope of the FFOA in the

immigration context. We need not decide that issue today,

though, because Danso’s conviction was expunged under foreign

law, and we are satisfied that neither equal protection nor due

30

Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 331 n.12 (5th

Cir. 2004) (noting with approval the Seventh Circuit’s

observation in Gill v. Ashcroft, 335 F.3d 574, 578 (7th Cir.

2003), that “even if a disposition under [the FFOA] counts as a

conviction in immigration law, it would not be a conviction for

other purposes,” and “[t]hus, § 1101(a)(48)(A) and [the FFOA] may

coexist, though the former reduces the domain of the latter”) .

31

18 U.S.C. § 3607(a)-(c).

13

process requires the BIA to treat his foreign expungement as it

would an expungement under the FFOA.

(b) Equal Protection

In Madriz-Alvarado, we held that equal protection does not

require the BIA to afford a Texas deferred adjudication the same

effect as it would an expungement of a federal conviction under

the FFOA, even if the alien offender arguably could have availed

himself of the FFOA.32 Like the Ninth Circuit in Dillingham, we

recognized that only the deferential rational-basis review of the

BIA’s decision was required.33 Unlike the Dillingham court,

however, we concluded that a rational basis did exist.

Specifically, we agreed with the Third Circuit’s assessment in

Acosta v. INS,34 that,

Familiar with the operation of the federal criminal

justice system, Congress could have thought that aliens

whose federal charges are dismissed under the FFOA are

unlikely to present a substantial threat of committing

subsequent serious crimes. By contrast, Congress may

have been unfamiliar with the operation of state

schemes that resemble the FFOA. Congress could have

worried that state criminal justice systems, under the

pressure created by heavy case loads, might permit

dangerous offenders to plead down to simple possession

charges and take advantage of those state schemes to

32

383 F.3d at 333-34.

33

Id. at 332.

34

341 F.3d 218 (3rd Cir. 2003).

14

escape what is considered a conviction under state

law.35

We also agreed with the Eight Circuit’s analysis in Vasquez-

Velezmoro v. INS,36 that,

we . . . see a rational basis for treating differently

state and federal convictions that are expunged.

Congress defines the rules of federal criminal

procedure, and Congress enacted the FFOA. It is

reasonable to grant greater immigration relief to

defendants whom it has selected for preferential

treatment of their convictions. That is, Congress

better knows and can control the pool of defendant

aliens who will be eligible for immigration relief via

the FFOA, than it can with state defendant aliens

rehabilitated through a variety of statutes.37

We are convinced that the Third and Eighth Circuits’

reasoning regarding state deferred-adjudication schemes applies

with at least equal force to the foreign expungement at issue in

this case. Any concerns Congress may have had that the narrow

and specific exception it sought to create through the FFOA might

become too broad if it included state rehabilitative schemes are

even more valid in the context of England’s ROA, which operates

to expunge every conviction that produces a sentence of 30 months

35

Madriz-Alvarado, 383 F.3d at 332 (quoting Acosta, 341

F.3d at 227.)

36

281 F.3d 693 (8th Cir. 2002).

37

Madriz-Alvarado, 383 F.3d at 332 (quoting Vasquez-

Velezmoro, 281 F.3d at 698.)

15

or less, regardless of the nature of the offense.38 We hold,

therefore, that equal protection does not prohibit IJs or the BIA

from refusing to give effect to an expungement under the ROA,

even if the alien facing removal arguably could have availed

himself of the expungement procedures set forth in the FFOA.

2. Cancellation of Removal

The BIA held that Danso was ineligible for cancellation of

removal because he was statutorily inadmissible under 8 U.S.C. §

1182(a)(2)(A)(i)(II), by virtue of his drug-offense conviction.

8 U.S.C. § 1229b(b) provides that,

The Attorney General may cancel removal of, and adjust

to the status of an alien lawfully admitted for

permanent residence, an alien who is inadmissible or

deportable from the United States if the alien–-

. . . .

(C) has not been convicted of an offense under section

1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title,

subject to paragraph (5); and

As we have recognized that the BIA correctly determined that the

disposition of Danso’s British drug offense was a “conviction”

under § 1101(a)(48)(A), we hold that the BIA was also correct in

concluding that Danso’s conviction rendered him inadmissible and

barred cancellation of his removal under § 1229b(b).

3. Adjustment of Status

38

See, supra notes 10 & 11.

16

Danso further contends that the BIA erred in holding that he

was ineligible to adjust his status in removal proceedings (or to

receive a continuance to pursue such adjustment), because, as an

“arriving alien,” he was barred from adjustment of status by 8

C.F.R. § 1245.1(c)(8).39 Danso bases his contention on several

cases in which other circuits have held that this regulation

contradicts the clear language and express intent of 8 U.S.C. §

1255(a),40 which specifies:

The status of an alien who was inspected and admitted

or paroled into the United States . . . may be adjusted

by the Attorney General, in his discretion and under

such regulations as he may prescribe, to that of an

alien lawfully admitted for permanent residence if (1)

the alien makes an application for such adjustment, (2)

the alien is eligible to receive an immigrant visa and

is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.

The government has devoted a substantial portion of its brief to

addressing the caselaw cited by Danso. We need not do so here,

39

See supra, note 6 for text of the regulation. Danso

concedes his “arriving alien” status.

40

See Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir.

2005) (“Although Congress delegated to the Attorney General the

discretionary authority to grant or deny an application for an

adjustment of status, 8 U.S.C. § 1255(a), Congress did not

delegate to the Attorney General the discretion to choose who was

eligible to apply for such relief. Thus, we agree . . . that

Congress has spoken to the precise issue of who is eligible to

apply for adjustment of status and that 8 C.F.R. § 245.1(c)(8) is

directly contrary to this Congressional determination.”); Zheng

v. Gonzales, 422 F.3d 98 , 114-15 (3rd Cir. 2005) (same); Succar

v. Ashcroft, 394 F.3d 8, 24 (1st Cir. 2005) (same).

17

however, as we conclude that Danso is ineligible for adjustment

of his status under the plain language of 8 U.S.C. § 1255(a).

Section 1255(a) conditions the Attorney General’s discretion

to adjust an alien’s status on, inter alia, the alien’s

eligibility to receive an immigrant visa. Danso is not eligible

to receive an immigrant visa: He is inadmissible under §

1182(a)(2)(A)(i)(II) because of his prior conviction.41 Even

though § 1182(h) allows the Attorney General, in his discretion,

to “waive the application of [§ 1182(a)(2)(A)(i)(II)] . . .

insofar as it relates to a single offense of simple possession of

30 grams or less of marijuana,” Danso cannot show that his

foreign conviction fits this narrow exception. Consequently, we

hold that he is not eligible for a status adjustment, regardless

of his being an “arriving alien” in removal proceedings.42

III. CONCLUSION

We hold that (1) the BIA did not violate Danso’s

constitutional right to equal protection by disregarding the

foreign expungement of his prior drug conviction, and (2) the BIA

41

Section 1182(a) provides that “aliens who are

inadmissible under the following paragraphs are ineligible to

receive visas.”

42

We also note that Danso does not even contend that he

could have met the third requirement for eligibility for

adjustment of status under § 1255(a), that an immigrant visa be

“immediately available” to him.

18

did not err as a matter of law in holding Danso statutorily

ineligible for cancellation of removal or adjustment of status.

The BIA’s order is, in all respects,

AFFIRMED.

19