Petition for Writ of Certiorari — Uritsky v. Gonzales

Supreme Court, U.S.

FILED

0416 62 JUN 6 - 2005

In The

Supreme Court of the Gnited States

4

ALEXANDER GRIGORIEVICH URITSKY,

Petitioner,

v.

ALBERTO GONZALES,

ATTORNEY GENERAL,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

+

PETITION FOR A WRIT OF CERTIORARI

with Appendix

+

*MARSHAL E. HYMAN

RUSSELL REID ABRUTYN

MARSHAL E. HYMAN & Assoc., PC

3250 WEST BIG BEAVER, SUITE 529

TROY, MICHIGAN 48084

248-643-0642

Attorneys for Petitioner

*Counsel of Record

LEGAL ADVANTAGE @ 432 Walnut Street @ Cincinnati, OH 45202

(800) 581-2252

QUESTIONS PRESENTED FOR REVIEW

l Whether the Sixth Circuit and Board of

Immigration Appeals erred as a matter of law and violated

longstanding federal and agency precedent in holding that

an adjudication under Michigan’s youthful trainee statute

constitutes a conviction for immigration purposes under 8

U.S.C. § 1101(a)(48)(A).

y 8 Whether the uniform application of immigration

laws, Equal Protection, and the rule of lenity require

reversal of the Sixth Circuit’s decision finding that an

adjudication under Michigan’s youthful trainee statute

constitutes a conviction for immigration purposes under 8

U.S.C. § 1101(a)(48)(A).

TABLE OF CONTENTS

Pages

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EINE cicccotrsoncussocnssscipsanbadncaséuanesseuss os

ET IID sv cccadcconcdcceccecscesesepacuconesncnactess ill

CD BIT ci ccccccccccsescsscscccscnnsesesecssscsesesssanne l

IN on cas aucdsscuctibedeabseaccctenbsecatsucstscaosedese l

Relevant Provisions Involved .................ssssessseesseees 2

I oot ica seduge ciduusecnenaubseonueseucensss 5

Reasons For Granting The Writ ..................cceeseeeeees 10

RUN biddiiaihnanthedneddsacccencesccecestseessuksdennccees 22

Appendix:

A - Circuit Court Opinion (3/7/05) ..............++ Al

B - Decision of the Board of Immigration

TE TIT cccnsecssdzensxncsecnsecsensess Bl

C - Decision of the Immigration

PCED cnvcecwscccecccncevsecensssuepesens Cl

li

TABLE OF AUTHORITIES

Table of Cases

Chery v. Ashcroft, 347 F.3d 404

eR MINI chs psssdiceisscntnccianinas

Costello v. INS, 376 U.S. 120,

84 S. Ct. 580, 11 L. Ed. 559 (1964) ........

Dillingham v. INS, 267 F.3d 996

Pr le SO is hi asdekecssaee

Fong Haw Tan v. Phelan, 333 U.S. 6,

68 S. Ct. 374, 92 L. Ed. 433 (1948) ........

Gerbier v. Holmes, 280 F.3d 297

CF SE BAA nidieacrciasdese

INS v. Errico, 385 U.S. 214, 87 S. Ct. 473,

17 L. Ed. 2d 318 (1966) .........ccceeeeeeees

INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271,

150 L. Ed. 2d 347 (2001) ...........0000000.

Leocal v. Ashcroft, 543 U.S. __, 125 S. Ct. 377,

160 L. Ed. 2d 271 (2004) ........cescceeeee

Matter of C-M-, 51. & N.

Die: 327 (BIA 1953).......ssccccrsssccreees

Matter of Chartier, 16 I. & N.

Wise. DOSED COTTE ic scocecncccsnctseress

Matter of De La Nues, 18 1. & N.

Pies. 140 GMA TOD. o ccsicisorcteeeene

ili

Pages

Matter of Devison, 22 I. & N.

Dec. 1362 (BIA 2000, 2001) ...............4 7, 12-18

Matter of Farias-Mendoza, 21 I. & N.

owe ]: S| eee 21

Matter of G-, 9 1. & N.

Dec. 159 (BIA 1960) ......c:c.ceccccceeseeceeseevees 21

Matter of Ozkok, 13 I. & N.

Dec. 546 (BIA 1988) ............ sie hialeneamnaneaiiala 11

Matter of Rodriguez-Rodriguez, 22 I. & N.

ies SE TI os accascconnstnscmosnccabens 14

Matter of Roldan, 22 I. & N.

Diao. SEZ GBA BGGID. ccceccccccscscccccscccvesenss 12,17

Patel v. Ashcroft, 401 F.3d 400

(GB Cle. ZOOS) nn cccccccccccccccccccscccccccccccccscccess 11

People v. Minott, 99 N.Y. Int. 0143 .

error em 16

Rosario v. INS, 962 F.2d 220

(2 Clit. 1992) ..rccccccccccccscccccccccccccesccccsceses 19

United States v. LeBlanc, 612 F.2d 1012

——————

(G™ Cir. 1960) .....cccccccccccccccccccccccccccsccsecees 16

Uritsky v. Gonzales, 399 F.3d 728

(G™ Ce. 2605S) .nccrccccccccccccccccceccecees 1, 10, 17, 18

Uritsky v. Ridge, 286 F. Supp. 2d 842

(E_D. Mich. 2003) ...........cccccccsccccccccccscseseses 7

iv

PSSA PRES NE OP PE LP OE TLL EE LS oI

Ye v. INS, 214 F.3d 1128 (9" Cir. 2000) .............0068 18

Constitutional Provisions oe

U.S. Comat. Ast. 1, 8 &.....ccccccsccccccrcscecssssccsencoscees 18

Statutes

8 U.S.C. § 1101(a)(43)(A) «2.0... ce eeeerereceeeceeeeeeeeeenenes 7

8 U.S.C. § 1101(a)(48)(A) «2... eee ee rene eee eee ees 2, 5, 41, 42

8 U.S.C. § 1227(a)(2)(A) (iii) 0.0... ec eeeeeeeneneeeeeeeee eee ees 6

8 U.S.C. § 1229a(c)(3)(A) ......ceececececneeecseeeenseeseees 10

8 U.S.C. § 1229a(c)(3)(B) ........0seececeerscececserseseeeees 10

CU BC. BUDS? cericccsrcccccccrsscscscsncccscccesssseccsssveneses 8

8 U.S.C. § 1252(b)(2) ..........ccececcecserecescscrceseeceecers 9

Ot NN ina csshssncpussienienco Me

I OI io evictnicanircseniiniverrereanvibisoies 713

Mich. Comp. Laws § 750.520d(1)(A) .....---.seseseeeeees 6,8

Mich. Comp. Laws § 762.11 .....sceeeeeeeseeereeeees 6, 15

Mich. Comp. Laws § 762.11(1) .......seseeeesererereneeenenes 2

Mich. Comp. Laws § 762.12 .........:sceeesereeeeeeeeeees 3, 16

Mich. Comp. Laws § 762.14 ...........seeeeeeeseeee eens en eens 4

Mich. Comp. Laws § 762.14(1) ......-...eseeeeeeeneeee sneer 16

Mich. Comp. Laws § 762.14(2) ........:::seseseeeereeeeeeenes 16

Mich. Comp. Laws § 762.14(4) ........-sseeeeeeeeeenees soa

N.Y. Crim. Proc. Law § 410.70(5) .........:eeseeeeeeeeeeeee 16

N.Y. Crim. Pro. Law § 720.10(2) ........:..cseeeeeeeeeeeees 15

N.Y. Crim. Pro. Law § 720.10(4) .........sceeeeseeeeeeeeees 15

N.Y. Crim. Proc. Law § 720.15(1) .........-. pies ee 16

N.Y. Crim. Proc. Law § 720.15(3) .........seseeeee eee eeeees 16

N.Y. Crim. Pro. Law § 720.20(3) ..........sceeeeeeeeeeeeees 15

Other Authorities

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 § 322(a)(1) ......---..+++ 11,17

Duds. 1. No. 104-206, 110 Stat. 3009 ..5........csscennsasss 11

Pub. L. No. 107-296, 116 Stat. 2135 .......... aos on

vi

aati

PETITION FOR WRIT OF CERTIORARI

Petitioner Alexander Grigorievich Uritsky

respectfully prays that a writ of certiorari issue to review

the opinion of the United States Court of Appeals for the

Sixth Circuit entered in this case on March 7, 2005.

OPINIONS BELOW

The opinion of the Immigration Judge (App. Cl

hereto) is unreported. The opinion of the Board of

Immigration Appeals (App. B1 hereto) is unreported. The

opinion of the Sixth Circuit Court of Appeals on the merits

(App. Al hereto), of which review is sought, is reported at

Uritsky v. Gonzales, 399 F.3d 728 (6" Cir. 2005).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit (App. Al) was entered on March 7,

2005. The jurisdiction of the Supreme Court is invoked

under Supreme Court Rule 10(a), in that the Sixth Circuit

has entered a decision in conflict with decisions of other

United States courts of appeal on the same important matter

and has sanctioned a decision of the Board of Immigration

Appeals that has so far departed from the accepted and

usual course of proceedings, as to call for an exercise of

this Court’s supervisory power.

RELEVANT PROVISIONS INVOLVED

8 U.S.C. § 1101 (a)(48)(A) provides:

(A) 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.

Mich. Comp. Laws § 762.11(1) provides:

(1) Except as provided in subsections (2)

and (3), if an individual pleads guilty to a

criminal offense, committed on or after the

individual's seventeenth birthday but before

his or her twenty-first birthday, the court of

record having jurisdiction of the criminal

offense may, without entering a judgment of

conviction and with the consent of that

individual, consider and assign that

individual to the status of youthful trainee.

Mich. Comp. Laws § 762.12 provides:

The court of record having jurisdiction over

the criminal offense referred to in section 11

of this chapter may, at any time, terminate

its consideration of the individual as a

youthful trainee or, once having assigned the

individual to the status of a youthful trainee,

may at its discretion revoke that status any

time before the individual's final release. If

an individual who is required to be

registered pursuant to the sex offenders

registration act willfully violates that act, the

court shall revoke the individual's status as a

youthful trainee. Upon termination of

consideration or revocation of status as a

youthful trainee, the court may enter an

adjudication of guilt and proceed as

provided by law. If the status of youthful

trainee is revoked, an adjudication of guilt is

entered, and a sentence is imposed, the court

in imposing sentence shall specifically grant

credit against the sentence for time served as

a youthful trainee in an institutional facility

of the department of corrections or in a

county jail.

Mich. Comp. Laws § 762.14 provides:

(1) If consideration of an individual as a

youthful trainee is not terminated and the

status of youthful trainee is not revoked as

provided in section 12 of this chapter, upon

final release of the individual from the status

as youthful trainee, the court shall discharge

the individual and dismiss the proceedings.

(2) An assignment of an individual to the

status of youthful trainee as provided in this

chapter is not a conviction for a crime and,

except as provided in subsection (3), the

individual assigned to the status of youthful

trainee shall not suffer a civil disability or

loss of right or privilege following his or her

release from that status because of his or her

assignment as a _ youthful trainee.

(3) An individual assigned to youthful

trainee status before October 1, 2004 for a

listed offense enumerated in section 2 of the

sex offenders registration act, 1994 PA 295,

MCL 28.722, is required to comply with

the requirements of _ that act.

(4) Unless the court enters a judgment of

conviction against the individual for the

criminal offense under section 12 of this

chapter, all proceedings regarding the

disposition of the criminal charge and the

individual's assignment as youthful trainee

shall be closed to public inspection, but shall

- be open to the courts of this state, the

department of corrections, the family

independence agency, law enforcement

personnel and, beginning January 1, 2005,

prosecuting attorneys for use only in the

performance of their duties.

STATEMENT

(i) Nature of the Case

This is a petition for review of the decisions of the

Board of Immigration Appeals (“BIA”), and the Sixth

Circuit Court of Appeals finding that assignment to

youthful trainee status under Michigan’s Holmes Youthful

Trainee Act constitutes a conviction under immigration law,

8 U.S.C. § 1101(a)(48)(A). Longstanding federal and

agency precedent have held that juvenile adjudications are

not “convictions” under immigration law.

: (ii) Proceedings at the Immigration Court

Mr. Alexander Uritsky, at the age of 11, was

admitted to the United States on April 21, 1996 as an H-4

nonimmigrant. On January 4, 2002, he adjusted his status

to that of a lawful permanent resident. On September 24,

2002, a Michigan trial court assigned Mr. Uritsky to

youthful trainee status under the Holmes Youthful Trainee

Act (““HYTA”), Mich. Comp. Laws § 762.11, based on his

plea of guilty to third degree sexual conduct in violation of

Mich. Comp. Laws § 750.520d(1)(A).’

On September 24, 2002 the Immigration and i

Naturalization Service (“INS”) placed him in removal

' Mich. Comp. Laws § 750.520d(1)(A) prohibits the sexual

penetration of another person who is between the ages of

13 and 16 years old.

* The Homeland Security Act abolished the INS effective

March 1, 2003 and transferred its functions to various

agencies within the Department of Homeland Security.

Pub. L. No. 107-296, 116 Stat. 2135, 2192. The BIA and

the Immigration Court remain part of the Department of

Justice. This petition refers to the INS with respect to

actions it took during its existence and to the appropriate

agencies for events occurring after March 1, 2003.

6

a RRA RM NT

proceedings in Immigration Court. The INS alleged that he

was removable under 8 U.S.C. § 1227(a)(2)(A)(ill) as an

alien convicted of an aggravated felony under 8 U.S.C. §

1101(a)(43)(A). nied

On April 3, 2003, in response to Mr. Uritsky’s

motion, the Immigration Judge (“IJ”) terminated the

removal proceedings based on his finding that assignment

to youthful trainee status under the HYTA is not a

conviction pursuant to the decision in Matter of Devison, 22

I. & N. Dec. 1362 (BIA 2000, 2001). App. Cl.

(iii) Proceedings at the Board of Immigration Appeals

The Department of Homeland Security (“DHS”) filed

a timely appeal from the IJ’s decision. While on appeal,

Mr. Uritsky was released from custody after the District

Court granted his petition for writ of habeas corpus. See

Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003).

On October 6, 2003, the BIA sustained the DHS’s

appeal and ordered Mr. Uritsky removed. The BIA

distinguished the HYTA from the statutes analyzed in

Devison, supra. In Devison, the BIA found New York’s

youthful offender provisions “sufficiently analogous” to the

Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C. §

5031. 22 I. & N. Dec. at 1367. According to the BIA, the

HYTA differs from the New York and federal statutes

because Michigan requires a youthful offender to enter a

guilty plea before being assigned to youthful trainee status.

The BIA found Mr. Uritsky removable as an aggravated

felon. App. B1.

(iv) Statement of Facts

Mr. Uritsky is a 20-year-old native of Ukraine and

citizen of Israel. When he was 11l-years-old, he and his

family were admitted to the United States as

nonimmigrants. On January 4, 2002, he they adjusted their

status to that of lawful permanent residents.

When he was 17, he had sexual intercourse with a

14-year-old girl. He pleaded guilty to third degree sexual

conduct, in violation of Mich. Comp. Laws §

750.520d(1)(A), and was assigned to youthful trainee status

under the HYTA on September 24, 2002. Michigan did not

enter a finding of guilt or conviction. The court sentenced

him to complete two years probation and pay fines, costs,

and fees, all of which he has fully complied with.

(v) Statement of Court of Appeals and Supreme Court

Jurisdiction

Jurisdiction in the Sixth Circuit Court of Appeals

was proper. 8 U.S.C. § 1252; Leocal v. Ashcroft, 543 U.S.

__, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004). Venue was

proper in the Sixth Circuit because an IJ sitting in Detroit,

Michigan completed the Immigration Court proceedings. 8

U.S.C. § 1252(b)(2).

Petitioner invokes the jurisdiction of this Court on

application for writ of certiorari under Supreme Court Rule

10(a), in that the Sixth Circuit has entered a decision in

conflict with decisions of other United States courts of

appeal on the same important matter and has sanctioned a

decision of the BIA that has so far departed from the

accepted and usual course of proceedings, as to call for an

exercise of this Court’s supervisory power.

REASONS FOR GRANTING THE WRIT

: Assignment to Youthful Trainee Status Under

Michigan’s HYTA Falls Outside Immigration

Law’s Definition of “Conviction”

Mr. Uritsky’s assignment to youthful trainee status

is not a conviction under immigration law. The BIA and

Sixth Circuit ignored longstanding precedent decisions

making juvenile adjudications an exception to the statutory

definition of “conviction.” For over fifty years, the BIA

~ thes consistently carved out an exception to the statutory

definition of conviction for alien offenders adjudicated

under state or federal youthful offender programs. The

DHS cannot meet its burden of proving by clear and

convincing evidence that Mr. Uritsky was convicted of a

crime. 8 U.S.C. §§ 1229a(c)(3)(A), (B).

The Sixth Circuit granted undue deference to the

BIA’s interpretation of Michigan’s HYTA. Uritsky, 399

F.3d at 734. The question of whether an alien has been

“convicted,” as defined by immigration law, is a non-

discretionary, purely legal question and, as such, the BIA’s

conclusions are reviewed de novo. See Leocal, 125 S. Ct.

377 at 380-81. Given that the BIA’s ultimate conclusion in

this case depends upon the agency’s interpretation of state

10

and federal statutes unrelated to immigration law and for

which it has no expertise in administering, the Sixth Circuit

should not have deferred to the BIA’s analysis. See Patel

v. Ashcroft, 401 F.3d 400, 407 (6™ Cir. 2005); Chery v.

Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003).

A. Statutory Definition of Conviction

In 1996, Congress amended the Immigration and

Nationality Act’s definition of the term “conviction,” now

found at 8 U.S.C. § 1101(a)(48)(A). Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (““IIRIRA”) § 322(a)(1). Prior

to IIRIRA, the BIA employed an unwieldy three-pronged

definition of conviction: (1) a judge or jury has found the

alien guilty or the alien has entered a plea of guilty or nolo

contender or has admitted sufficient facts to warrant a

finding of guilt; (2) the judge has ordered the imposition of

some form of punishment, penalty, or restraint on the

alien’s liberty; and (3) a judgment or adjudication of guilt

may be entered if the alien violates the terms of his or her

probation or fails to comply with the requirements of the

court’s order, without availability of further proceedings

requiring the alien’s guilt or innocence of the original

charge. See Matter of Ozkok, 13 I. & N. Dec. 546 (BIA

1988).

Through IIRIRA, Congress eliminated the third

prong of this definition so that it now requires (1) a judge

or jury to find the alien guilty or where the alien has

entered a plea of guilty or nolo contender or has admitted

sufficient facts to warrant a finding of guilty; and (2) a

judge to order some form of punishment, penalty, or

restraint on the alien’s liberty. 8 U.S.C. § 1101(a)(48)(A).

This amended definition eliminated the disparate treatment

under immigration law under which aliens faced different

immigration consequences depending on whether they were

convicted in a state that uses “deferred adjudications” or

expungements. Matter of Roldan, 22 I. & N. Dec. 512, 521

(BIA 1999).

B. The Amended Definition of Conviction

Left Untouched BIA Precedents Treating

Distinguishing Juvenile Adjudications

from Convictions

The BIA has consistently - distinguished between

juvenile delinquency and criminal proceedings. Devison,

22 I. & N. Dec. at 1365; see also Matter of De La Nues, 18

I. & N. Dec. 140 (BIA 1981); Matter of C-M-, 51. & N.

Dec. 327, 329 (BIA 1953). Following IIRIRA’s

amendment to the meaning of “conviction,” the BIA once

again faced the question of whether state juvenile

12

adjudications constitute convictions under immigration law.

In a published unanimous en banc decision, the BIA again

answered the question in the negative. Devison, supra. In

a subsequent unanimous en banc decision, the BIA denied

the INS’s motion for reconsideration. Devison, 22 I. & N.

Dec. at 1374. Congress was presumably aware of the fifty

years of BIA precedents on the issue yet there is no record

-of an effort or intention to include juvenile adjudications

within the definition of “conviction.” Id. at 1369.

The key factor is that youthful offender statutes are

premised on the offender’s status, not his or her guilt or

conduct. Id. at 1368. With respect to youthful offenders,

there is no conviction in the first place and disposition rests

on the youthful offender’s status as a youth as opposed to

his or her conduct. Id. at 1368, 1371. Juvenile delinquency

and youthful offender | adjudications differ from

expungements or deferred adjudications because in the

latter cases, the offender is convicted only to have his or her

conviction erased based on post-conviction conduct.

Devison, 22 I. & N. Dec. at 1371.

Following federal precedent, the BIA recognizes

that the FJDA results in an adjudication of status, not a

criminal conviction. 18 U.S.C. §§ 5031, 5032. State

youthful offender statutes need only be “sufficiently

13

; Bs |

analogous” to the FJDA. Devison, 22 I. & N. Dec. at 1367;

De La Nues, 18 I. & N. Dec. 140; Matter of Rodriguez-

Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).

Devison involved a youthful offender adjudication

under New York law. There are several important

difference between the New York and federal statutory

schemes: under the state statute, a youth must be less than

19 years of age as opposed to 18 in the federal system; New

York first enters a conviction and only vacates the

conviction after adjudication as a youthful offender while

the federal system adjudicates the offender’s status first. 22

I. & N. Dec. at 1368.

Nevertheless, the two statutes are analogous because

“the central issued before both the state and federal courts is

the offender’s status, not his guilt or innocence.” Id. Under

both schemes, the court records are confidential and the

adjudication does not constitute a conviction. Id. at 1367-

68. Even if a beneficiary of New York’s youthful offender

scheme violates his or her probation and is_ then

resentenced, the adjudication is not treated as a conviction

under immigration law. Id. at 1373.

14

wl Michigan’s HYTA is Sufficiently

Analogous to the FIDA

Michigan’s HYTA statute has more in common

with the FJDA than does the New York statute. The

HYTA is “similar in nature and purpose” to the FIDA. See

Devison, 22 I. & N. Dec. at 1377.

An offender seeking assignment to youthful trainee

status enters a plea of guilty as a condition for such

assignment. Mich. Comp. Laws § 762.11. Unlike New

York’s procedures, the HYTA directs the state court to not

enter a judgment of conviction. Compare Mich. Comp.

Laws § 762.11 with N.Y. Crim. Pro. Law §§ 720.10(4),

.20(3). Under the FJDA, as in Michigan, the court first

adjudicates the offender’s status and then initiates the

appropriate procedures. See Devison, 22 I. & N. Dec. at

1368. In other words, under the HYTA and the FJDA, the

court never enters a conviction whereas in New York, the

court enters, and then vacates, a conviction.

Michigan law applies to certain crimes committed

by “youths” between the ages of 17 and 20. Mich. Comp.

Laws § 762.11. New York law applies to certain crimes

committed by “youths” between the ages of 16 and 19.

N.Y. Crim. Pro. Law § 720.10(2). The FJDA applies to

15

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;

;

i

a A ANE EAD MAIO EN A tare Sct Sees alates ayer —s

anyone under the age of 21 who committed an offense

before reaching 18 years of age. 18 U.S.C. § 5031.

Both Michigan and New York seal these court

records, with only limited exceptions. Mich. Comp. Laws

_ § 762.14(4); N.Y. Crim. Proc. Law §§ 720.15(1), (3).

In New York, if an individual placed on youthful

offender status violates the conditions of his probation, the

state court can vacate the sentence and resentence him as an

adult. See Devison, 22 I. & N. Dec. at 1373; see also

People v. Minott, 99 N.Y. Int. 0143 (N.Y. 10/21/1999);

N.Y. Crim. Proc. Law § 410.70(5). In Michigan, if a

youthful trainee violates the terms of his supervision, the

court “may” impose a sentence. Mich. Comp. Laws §

762.12.

At the conclusion of the HYTA proceedings, the

Michigan court releases the offender from youthful trainee

status, discharges the offender, and dismisses the

proceedings. Mich. Comp. Laws § 762.14(1). Assignment

to youthful trainee status is not a conviction and does not

result in a civil disability or loss of a right or privilege.

Mich. Comp. Laws § 762.14(2); United States v. LeBlanc,

612 F.2d 1012, 1013 (6" Cir. 1980). As with the FJDA, the

pivotal quality of the HYTA is that it prevents the entry of

aconviction. Devison, 22 I. & N. Dec. at 1376.

16

The HYTA is “similar in nature and purpose” to the

FJDA. Id. at 1377; Uritsky, 399 F.3d at 734. As with the

FJDA and New York law, the HYTA focuses on the

offender’s status as a youth, not his or her guilt or conduct.

Il. Uniform Application of the Immigration Laws,

Equal Protection, and the Principle of Narrow

Construction Dictates that HYTA Adjudications

are not Convictions under Immigration Law

The Sixth Circuit’s decision violates three deeply

held principles of immigration law. Congress has long

sought nationwide uniformity in the application of

immigration laws as they apply to criminal aliens. The

principle of narrow construction and Equal Protection

require that courts resolve any doubts in the aliens’ favor.

In amending the definition of conviction in ITRIRA

§ 322(a)(1), Congress sought to achieve a uniform federal

approach. Roldan, 22 I. & N. Dec. at 517. Under the pre-

IIRIRA definition, the question of whether an alien was

“convicted” often turned on the vagaries of differing state

laws and procedures. Id. at 521. Aliens should not be

punished for being unfortunate enough to have committed a

crime in a state whose youthful offender procedures lack

the right combination of words. See id.

17

In Devison, the BIA relied on the goal of national

uniformity to find New York’s procedures to be sufficiently

analogous to the FJDA so as to fall within the exception to

the definition of “conviction.” Devison, 22 I. & N. Dec. at

1371. The BIA sought to “faithfully apply the new

statutory definition in a manner that will be consistent

across State lines.” Id. Yet a few short years later, the BIA

violated this principle by finding that Michigan’s HYTA

procedures result in a “conviction” despite its similarity in

purpose and nature to the FJDA. See Uritsky, 399 F.3d at

734. The Sixth Circuit recognized that the line drawn by

the BIA between HYTA and New York’s statutes “may

seem to some to be less than compelling.” Id.

There is a “strong interest in national uniformity in

the administration of immigration laws.” Gerbier_v.

Holmes, 280 F.3d 297, 311 (3 Cir. 2002). This policy of

uniformity is rooted in the Constitution, which grants

Congress the power to “establish a uniform Rule of

Naturalization.” U.S. Const. art. I, § 8. Immigration laws

“should be applied uniformly across the country, without

regard to the nuances of state law.” Ye v. INS, 214 F.3d

1128, 1132 (9" Cir. 2000). The immigration laws were

“designed to implement a uniform federal policy,” and the

meanings of the concepts important to its application are

18

“not to be determined according to the law of the forum,

but rather require a uniform federal definition.” Rosario v.

INS, 962 F.2d 220, 223-24 (2 Cir. 1992). “{E]qual

protection considerations prohibit the government from

treating differently aliens” who have had received youthful

offender adjudications “simply because of the origin of the

statute under which they were” adjudicated. See

Dillingham v. INS, 267 F.3d 996, 1006-07 (9™ Cir. 2001)

(addressing state statutes similar to the Federal First

Offender Act).

An alien’s fate should not hinge on the wording of a

state’s youthful offender statute when the intent, purpose,

and effect of the youthful adjudications are the same.

“Fundamental fairness dictates that ... aliens who are in

like circumstances, but for irrelevant and fortuitous factors,

be treated in like manner.” Gerbier, 280 F.3d at 311-12.

Over fifty years ago, the Court articulated the

principle of narrow construction as an overall guide to

statutory interpretation of the immigration laws, stating

that,

‘We resolve the doubts in favor of that

[narrow] construction because deportation is

a drastic measure and at times the

equivalent of banishment or exile.’ It is the

19

forfeiture for misconduct of a residence in

this country. Such a forfeiture is a penalty.

To construe this statutory provision less :

generously to the alien might find support in

logic. But since the stakes are considerable

for the individual, we will not assume that

Congress meant to trench on his freedom

beyond that which is required by the

narrowest of several possible meanings of

the words used.

Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S. Ct. 374,

376, 92 L. Ed. 433 (1948).

Time and again, the Court returned to this guiding

principle, stating that it “would nonetheless be constrained

by accepted principles of statutory construction in this area

of the law to resolve that doubt in favor of the” alien.

Costello v. INS, 376 U.S. 120, 128, 84 S. Ct. 580, 585, 11

L. Ed. 559 (1964).

[T]he doubt should be resolved in favor of

the alien.... We conclude that to give

meaning to the statute in light of its

humanitarian purpose of preventing the

breaking up of families composed in part at

least of American citizens, the conflict

20

between the circuits must be resolved in

favor of the aliens.

INS v. Errico, 385 U.S. 214, 225, 87 S. Ct. 473, 480, 17 L.

Ed. 2d 318 (1966).

As recently as 2001, the Court turned to the

principle of narrow construction, citing the “longstanding

principle of construing any lingering ambiguities in

deportation statutes in favor of the alien.” INS v. St. Cyr,

533 U.S. 289, 320, 121 S. Ct. 2271, 2290, 150 L. Ed. 2d

347 (2001). When an immigration statute has criminal

implications, the Court applies the rule of lenity because the

statute must be interpreted consistently in criminal and

noncriminal contexts. Leocal, 125 S. Ct. at 384 n.8.

The BIA has consistently applied the principle of

narrow construction. See Matter of Farias-Mendoza, 21 I.

& N. Dec. 269 (BIA 1996); see also Matter of Chartier, 16

I. & N. Dec. 284 (BIA 1977); Matter of G-, 9 I. & N. Dec.

159 (BIA 1960).

The principles of uniform application of the

immigration laws, equal protection, and narrow

construction required the Sixth Circuit to resolve any

doubts regarding the definition of “conviction” in favor of

Mr. Uritsky.

21

CONCLUSION

Petitioner respectfully submits that the Sixth Circuit

erred in the following respects:

e Petitioner’s assignment to youthful trainee status under

Michigan’s Holmes Youthful Trainee Act is not a

conviction under 8 U.S.C. § 1101(a)(48)(A).

e Petitioner is not subject to removal as an alien

convicted of an aggravated felon under-8 U.S.C. §

1227(a)(2)(A)(iii).

e The Immigration Judge properly terminated the

removal proceedings instituted against Petitioner.

Therefore, Petitioner respectfully prays that the

Court grant his petition for writ of certiorari, reverse the

decisions of the Sixth Circuit Court of Appeals and the

BIA, and terminate the removal proceedings instituted

against him.

Respectfully Submitted,

Marshal E. Hyman

Counsel of Record

Russell Reid Abrutyn

22

Table of Appendix

ee —— —_————

U.S. COURT OF APPEALS, SIXTH CIRCUIT:

Opinion,

filed O3/OT/IOS .... 2c ccccecesccces Al-Al5

U.S. DEPARTMENT OF JUSTICE:

Decision,

CO ee B1-B6

U.S. IMMIGRATION COURT:

Order,

filed 04/03/03 .... ccc cceccccceeceees C1-C4

United States Court of Appeals,

Sixth Circuit.

Alexander Grigorievich URITSKY, Petitioner,

Vv.

Alberto GONZALES, Attorney General, Respondent.

No. 03-4331.

Argued: Feb. 2, 2005.

Decided and Filed: March 7, 2005.

Background: Alien appealed from order of the Board of

Immigration Appeals (BIA) that ordered him removed from

the United States.

Holding: The Court of Appeals, Alan E. Norris, Circuit

Judge, held that alien's plea of guilty to third degree sexual

conduct constituted a "conviction" under the Immigration

and Nationality Act (INA) subjecting alien to removal, -

notwithstanding alien's designation and sentencing as a

youthful trainee under Michigan's Youthful Trainee Act

(YTA).

Affirmed.

West Headnotes

[1] KeyCite Notes

<-361 Statutes .

‘=361VI Construction and Operation é

‘*361VI(A) General Rules of Construction

>?361k213 Extrinsic Aids to Construction

<#361k219 Executive Construction .

«361k219(6) Particular Federal Statutes ;

<361k219(6.1) k. In General. Most Cited

Cases

To the extent that an appeal from a determination of the

Board of Immigration Appeals (BIA) involved statutory

A-l

construction of the Immigration and Nationality Act (INA),

the appellate court would accord the Department of

Homeland Security deference. Immigration and Nationality

Act, § 101 et seq., 8 U.S.C.A. § 1101 et seq.

©

a A ay ast

[2] KeyCite Notes

BOE TY

- 724 Aliens

~°24III Immigration

= 24k52 Detention, Supervision and Deportation

&=24k53.2 Crime and Immorality

~24k53.2(3) k. Number and Nature of

Prosecutions or Punishment; Clemency or

Recommendation Against Deportation. Most Cited Cases

Alien's plea of guilty to third degree sexual conduct

constituted a "conviction" under the Immigration and

Nationality Act (INA) subjecting alien to removal,

notwithstanding alien's designation and sentencing as a

youthful trainee under Michigan's Youthful Trainee Act.

Immigration and Nationality Act, § 101(a)(48)(A), 8

U.S.C.A. § 1101(a)(48)(A); M.C.L.A. §§ 750.520d(1)(a),

762.11.

[3] KeyCite Notes

2°24 Aliens

—24III Immigration

v~24k52 Detention, Supervision and Deportation

~¥24k53.2 Crime and Immorality

o=24k53.2(3) k. Number and Nature of

Prosecutions or Punishment; Clemency or

Recommendation Against Deportation. Most Cited Cases

“92 Constitutional Law KeyCite Notes

*92XI Equal Protection of Laws

92k250.5 k. Other Regulations. Most Cited Cases

Board of Immigration Appeals' (BIA) finding that alien's

plea of guilty to third degree sexual conduct constituted a

"conviction" under the Immigration and Nationality Act

(INA) subjecting alien to removal, even though alien had

been designated and sentenced as a youthful trainee under

Michigan law, did not violate alien's equal protection rights;

Michigan law was rationally distinguishable from New York

juvenile delinquency law, which had been held to not

constitute a conviction under the INA, given that

adjudications made pursuant to the Michigan's Youthful

Trainee law were revocable adjudications, but findings of

delinquency under New York law conveyed an irrevocable

status. U.S.C.A. Const.Amend. 5; Immigration and

Nationality Act, § 101(a)(48)(A), 8 U.S.C.A. §

1101(a)(48)(A); M.C.L.A. §§ 750.520d(1)(a), 762.11.

[4] KeyCite Notes ™

i292 Constitutional Law

i=792XI Equal Protection of Laws

¢=92k213.1 Bases for Discrimination Affected in

General

92k213.1(2) k. Rational or Reasonable Basis;

Relation to Object or Compelling Interest. Most Cited Cases

Under rational basis scrutiny for equal protection violation,

a statute is accorded a strong presumption of validity and

will be upheld if any reasonably conceivable state of facts

could demonstrate that the statute is rationally related to a

legitimate government purpose. U.S.C.A. Const.Amend. 5.

*728 ARGUED: Richard A. Kulics, Immigration Law

Center, Birmingham, Michigan, *729 for Petitioner. Norah

Ascoli Schwarz, United States Department of Justice,

A-3

Washington, D.C., for Respondent. ON BRIEF: Richard A.

Kulics, Immigration Law Center, Birmingham, Michigan, for

Petitioner. Linda S. Wendtland, Michelle Thresher, United

States Department of Justice, Washington, D.C., for

Respondent.

Before: NORRIS and GIBBONS, Circuit Judges; TODD, Chief

District Judge._[FN*]

FEN* The Honorable James D. Todd, Chief United States

District Judge for the Western District of Tennessee, sitting

by designation.

OPINION

ALAN E. NORRIS, Circuit Judge.

Alexander Grigorievich Uritsky contests a decision of the

Board of Immigration Appeals ("Board") that ordered him

removed from the United States. In 2002, Uritsky pleaded

guilty to one count of third degree sexual conduct in

violation of Mich. Comp. Laws § 750.520d(1)(a). He

received a sentence of probation and a designation of

"youthful trainee" under Michigan's Holmes Youthful

Trainee Act ("YTA"), Mich. Comp. Laws §§ 762.11-16.

Despite his designation as a "youthful trainee," we conclude

that Uritsky's "conviction" counts as an aggravated felony

as defined by § 101(a)(48)(A) of the Immigration and

Nationality Act ("INA"), 8 U.S.C. § 1101(a)(48)(A), and he

therefore is subject to removal.

) #

Uritsky is a native of Ukraine and a citizen of Israel. He

entered the United States in 1996 as an eleven year-old,

non-immigrant and became a lawful permanent resident on

January 4, 2002. When he was seventeen, Uritsky had

intercourse with a girl of fourteen. He subsequently pleaded

guilty to third degree sexual conduct, Mich. Comp. Laws §

750.520d(1)(a), which prohibits sexual penetration of

another person who is between thirteen and sixteen years

old. Under Michigan law, the maximum sentence for this

offense is fifteen years of imprisonment. Mich. Comp. Laws

A-4

Z _

Judgment against Uritsky was entered on September 24,

2002, and included two years of probation, fines, and costs.

The judgment also provided that "[njo judgment of

conviction is entered. The defendant is assigned to youthful

trainee status[.]" |

Because of this conviction the Department of Homeland

Security ("DHS") served Uritsky with a Notice to Appear

on November 2, 2002, which charged him with ©

"removability" on the ground that he committed an

aggravated felony offense. The INA provides, "Any alien

who is convicted of an aggravated felony at any time after

admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).

Among other things, the INA defines “aggravated felony" as

"murder, rape, or sexual abuse of a minor." 8 U.S.C. &

. The same section of the INA defines

"conviction" as follows:

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

*730 (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).

In response to the Notice to Appear, Uritsky filed a motion

to terminate the proceedings, reasoning that his

adjudication as a youthful trainee did not constitute an

aggravated felony conviction as defined by the INA. The

YTA provides that "if an individual pleads guilty to a

criminal offense, committed on or after the individual's

seventeenth birthday but before his or her twenty-first

birthday, the court of record having jurisdiction of the

criminal offense may, without entering a judgment of

conviction and with the consent of that individual, consider

and assign that individual to the status of youthful trainee."

Mich. Comp. Laws § 762.11(1). Further, "If consideration of

an individual as a youthful trainee is not terminated and

the status of youthful trainee is not revoked as provided in

section 12 of this chapter, upon final release of the

A-5

individual from the status as youthful trainee, the court

shall discharge the individual and dismiss the proceedings."

Mich. Comp. Laws § 762.14(1) (footnote omitted).

Moreover, "An assignment of an individual to the status of

youthful trainee as provided in this chapter is not a

conviction for a crime and ... the individual assigned to the

status of youthful trainee shall not suffer a civil disability or

loss of right or privilege following his or her release from

that status because of his or her assignment as a youthful

trainee." Mich. Comp. Laws § 762.14(2).

In addition to the language of the YTA, Uritsky relied upon

an opinion of the Board, In re Miguel Devison-Charles

"Devison " I&ND WL 1470461 (BIA

2000), to support his view that he had not committed the

aggravated felony required by the INA to trigger removal.

In Devison, the Board considered whether an adjudication

as a "youthful offender" under the New York criminal code

could nonetheless constitute an aggravated felony

conviction as defined by the INA. The Board compared the

New York scheme to the Federal Juvenile Delinquency Act

("FIDA"), 18 U.S.C. §§ 5031-42, and concluded, "[T]he

New York procedure under which the respondent was

adjudicated a youthful offender ... is sufficiently analogous

to the procedure under the FJDA to classify that

adjudication as a determination of delinquency, rather than

as a conviction for a crime." Devison at 1367. In its

reasoning, the Board drew a critical distinction between a

finding of delinquency, which involves "status" rather than

guilt or innocence, and deferred adjudication or

expungement. Jd. at 1371. Deferred adjudications

constitute convictions under the INA while findings of

delinquency do not:

[JJuvenile delinquency and youthful offender adjudications

are not akin to expungement or deferred adjudication

procedures. Under the former, proceedings are civil in

nature and the adjudication of a person determined to be a

juvenile delinquent or youthful offender is not a conviction

ab initio, nor can it ripen into a conviction at a later date.

In the case of an expungement or deferred adjudication,

the judgment in the criminal proceeding either starts out as

a "conviction" that can be "expunged" upon satisfactory

A-6

completion of terms of punishment and petition to the

court, or as a judgment that is deferred pending similar

satisfaction of conditions of punishment. In either case,

however, neither expungement nor deferral can be

presumed, and the original judgment of guilt may remain,

or ripen into, a "conviction" under state law. This is a

dispositive difference, because a juvenile adjudication

cannot become a conviction *731 based on the occurrence

or nonoccurrence of subsequent events. To eliminate these

distinctions and overrule our well- established precedents

on these issues, we would require clearer direction from

Congress that it intended juvenile adjudications to be

treated as convictions for immigration purposes.

Id. at 1371-72 (footnote omitted). In short, the instant

case requires us to determine whether the Michigan YTA is

closer to a deferred adjudication, in which case Uritsky is

subject to removal, or to a finding of delinquency.

The immigration judge determined that the Michigan

scheme constituted a finding of delinquency as defined by

Devison and terminated proceedings. The Board reversed

based on the following rationale:

We agree with the DHS that the respondent has been

convicted for immigration purposes. In Matter of Devison,

supra, we found that an adjudication of youthful offender

status pursuant to N.Y.Crim. Pro. Law § 720 does not

constitute a conviction under section 101(a)(48)(A) of the

Act because it is analogous to a determination of juvenile

delinquency under the Federal Juvenile Delinquency Act, 18

U.S.C. §§ 50131-5042 ("FJDA"), in several ways, the most

notable being that, once an individual is determined to be a

youthful offender under New York law, his or her conviction

is vacated. Because the vacation of the conviction does not

depend on the individual's future good behavior, we found

that the adjudication is not an expungement or other

rehabilitative act. Moreover, we concluded that a youthful

offender adjudication does not, in fact, fit within the scope

of the definition of the term "conviction" contained in

section 101(a)(48)(A) of the Act.

In the present case, the respondent was sentenced as a

youthful trainee under MCL § 762.11 et seq. for his offense

of criminal sexual conduct in the third degree. The

A-7

respondent claims that MCL § 762.11 is analogous to the

FJDA and New York law, but we disagree. As the DHS has

explained, a criminal action against an individual is not

completely vacated under Michigan law until an individuai

completes his or her probation or sentence. And a judge

may revoke the youthful trainee status at any time. These

distinctions between the Michigan youthful trainee program

and the FJDA are significant and make the Michigan

program more analogous to a rehabilitative expungement

than an adjudication of juvenile delinquency. We therefore

agree with the DHS that the grant of youthful trainee status

in the respondent's case qualifies as a conviction under

section 101(a)(48)(A) of the Act.

Decision of the Board of Immigration Appeals, Oct. 6, 2003

at 2 (citations omitted). The Board ordered Uritsky

removed from the United States but remanded the matter

to allow him to choose a country for removal.

II.

Standard of Review

ean To the extent that this appeai involves statutory

construction of the INA, we accord the DHS deference. INS

v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439,

143 L.Ed.2d 590 (1999). In Aguirre-Aguirre, the Court

reviewed the manner in which the agency construed the

INA's definition of the term "serious nonpolitical crime." In

reaching its decision, the Court faulted the Ninth Circuit,

which had reversed the Board, for not according the Board

the proper deference in construing the INA:

Because the Court of Appeals confronted questions

implicating "an agency's construction of the statute which it

administers," *732 the court should have applied the

principles of deference described in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, the

court should have asked whether "the statute is silent or

ambiguous with respect to the specific issue" before it; if

so, "the question for the court [was] whether the agency's

answer is based on a permissible construction of the

statute." Jd., at 843, 104 S.Ct. 2778. See also INS v.

A-8

-Fon 4 SS. [421 448-449, 107

, 434].

It is clear that principles of Chevron deference are

applicable to this statutory scheme. The INA provides that

"(t]he Attorney General shall be charged with the

administration and enforcement" of the statute and that the

"determination and ruling by the Attorney General with

respect to all questions of law shall be controlling." 8 U.S.C.

§ 1103(a)(1) (1994 ed., Supp. III). Section 1253(h),

moreover, in express terms confers decisionmaking

authority on the Attorney General, making an alien's

entitlement to withholding turn on the Attorney General's

"“determin[ation]" whether the statutory conditions for

withholding have been met. 8 U.S.C. §§ 1253(h)(1), (2). In

addition, we have recognized that judicial deference to the

Executive Branch is especially appropriate in the

immigration context where officials "exercise especially

sensitive political functions that implicate questions of

foreign relations." INS v. Abudu, 485 U.S. 94, 110, 108

S.Ct. 904, 99 L.Ed.2d 90 (1988).

Aquirre-Aguirre, 526 U.S. at 424-25, 119 S.Ct. 1439. With

this admonition in mind, we turn to the sections of the INA

crucial to this appeal.

Evolution of the Term "Conviction" in the Immigration

Context

The statutory definition of conviction found at 8 U.S.C. §

1101(a)(48)(A) was added to the INA in 1996. Before that,

the Board had attempted to provide a uniform definition of

the term in Matter of Ozkok, 19 I & N Dec. 546, 1988 WL

235459 (BIA 1988). In Ozkok, the Board surveyed its i

struggle to determine "what state action constitutes a |

conviction with sufficient finality for purposes of the

immigration laws." Jd. at 548. After observing that "most

states now employ some method of ameliorating the '

consequences of a conviction," including some that apply |

only to youthful offenders, the Board concluded that it was

irrational to treat aliens differently simply because of slight

differences among the criminal codes of the various states.

Id. at 550-51. It therefore proposed the following definition

for those aliens who have been subject to criminal

proceedings but who have yet to have a formal judgment of

A-9

guilt entered against them:

Where adjudication of guilt has been withheld ... further

examination of the specific procedure used and the state

authority under which the court acted will be necessary. As

a general rule, a conviction will be found for immigration

purposes where all of the following elements are present:

(1) a judge or jury has found the alien guilty or he has

entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment,

penalty, or restraint on the person's liberty to be imposed

(including but not limited to incarceration, probation, a fine

or restitution, or community-based sanctions such as a

rehabilitation program, a work-release *733 or study-

release program, revocation or suspension of a driver's

license, deprivation of nonessential activities or privileges,

or community service); and

(3) a judgment or adjudication of guilt may be entered if

the person violates the terms of his probation or fails to

comply with the requirements of the court's order, without

availability of further proceedings regarding the person's

guilt or innocence of the original charge.

Id. at 551-52 (footnote omitted).

Congress amended the INA significantly with the passage of

the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996. The House Conference Report,

H.R. Conf. Rep. 104-828 (1996), provides the following

reasoning for modifying the definition of conviction

articulated in Matter of Ozkok:

This section deliberately broadens the scope of the

definition of "conviction" beyond that adopted by the Board

of Immigration Appeals in Matter of Ozkok, 19 I & N Dec.

546 (BIA 1988). As the Board noted in Ozkok, there exist in

the various States a myriad of provisions for ameliorating

the effects of a conviction. As a result, aliens who have

clearly been guilty of criminal behavior and whom Congress

intended to be considered "convicted" have escaped the

immigration consequences normally attendant upon a

conviction. Ozkok, while making it more difficult for alien

criminals to escape such consequences, does not go far

enough to address situations where a judgment of guilt or

A-10

imposition of sentence is suspended, conditioned upon the

alien's future good behavior. For example, the third prong

of Ozkok requires that a judgment or adjudication of guilt

may be entered if the alien violates a term or condition of

probation, without the need for any further proceedings

regarding guilt or innocence on the original charge. In

some States, adjudication may be "deferred" upon a finding

or confession of guilt, and a final judgment of guilt may not

be imposed if the alien violates probation until there is an

additional proceeding regarding the alien's guilt or

innocence. In such cases, the third prong of the Ozkok

definition prevents the original finding or confession of guilt

to be considered a "conviction" for deportation purposes.

This new provision, by removing the third prong of Ozkok,

clarifies Congressional intent that even in cases where

adjudication is "deferred," the original finding or confession

of guilt is sufficient to establish a "conviction" for purposes

of the immigration laws. In addition, this new definition

clarifies that in cases where immigration consequences

attach depending upon the length of a term of sentence,

any court-ordered sentence is considered to be "actually

imposed," including where the court has suspended the

imposition of the sentence. The purpose of this provision is

to overturn current administrative rulings holding that a

sentence is not "actually imposed" in such cases.

Id. at 224 ("Joint Explanatory Statement") (emphasis

added). ;

This new definition was construed shortly after its

Roldan-Santoyo ("Roldan"), 22 1 & N Dec. 512, 1999 WL

126433 (BIA 1999). The Board took a restrictive view of

how an expungement affects whether an alien was

"convicted" as defined by 8 U.S.C. § 1101(a)(48)(A):

We ... find it significant that, under the new definition, an

alien is considered convicted for immigration purposes

despite the fact that further proceedings addressing the

merits of the original *734 charge might be required

before the state would consider him convicted. It would be

incongruous for us to interpret the definition to allow an

alien, who during the entire period of his probation would

have been considered convicted for immigration purposes,

A-11

to be relieved of the immigration consequences of his

misconduct as of the date of a subsequent rehabilitative

state action having absolutely no relation to the merits of

the charge. Congress has focused on the original

determination of guilt and has expressed clear disinterest

regarding subsequent state rehabilitative measures. We

therefore interpret the new definition to provide that an

alien is considered convicted for immigration purposes upon

the initial satisfaction of the requirements of section

101(a)(48)(A) of the Act, and that he remains convicted

notwithstanding a subsequent state action purporting to

erase all evidence of the original determination of guilt

through a rehabilitative procedure.

Id, at 523.

After Ro/jdan, however, the Board decided Devison, supra,

and carved out the distinction already discussed: while

deferred adjudications, such as an expungement, remain

convictions even though they might apply to youthful

offenders, findings of delinquency do not because they

assign the offender a particular status that cannot be

revoked. Devison at 1371-72.

Application of the Definition to Uritsky

C

(21. ne Michigan YTA permits trial courts to assign

individuals between the ages of 17 and 20 who plead guilty

to a criminal offense to youthful trainee status. Mich.

Comp. Laws § 762.11. In such cases, the trial court does

not enter a judgment of conviction. However, while the

individual is serving his probationary sentence as a youthful

trainee, the court retains discretion to "revoke that status

at any time ... [and] enter an adjudication of guilt and

proceed as provided by law." Mich. Comp. Laws § 762.12.

Further, "If the status of youthful trainee is revoked, an

adjudication of guilt is entered, and a sentence is imposed

..." Id. Assuming that the probationary period is served

without incident, "upon final release of the individual from

the status of youthful trainee, the court shall discharge the

individual and dismiss the proceedings." Mich. Comp. Laws

§ 762.14(1).

Uritsky argues that the only difference between the New

A-12

SS

York statute construed by Devison and the Michigan YTA is

that the latter permits revocation of youthful trainee status

while the former does not. However, both statutes deal

with the same age group, reflect a similar legislative intent

to give young offenders a second chance to avoid the

stigma of criminal conviction, and promote rehabilitation

over punishment. According to Uritsky, this procedural

difference is not enough to justify varving applications of

the INA based solely on one's state of residence. Because

the Board failed to articulate a rational basis for such

disparate application, Uritsky continues, its order of

removal violated his right to equal protection and must be

vacated.

We are not unsympathetic to Uritsky's position. The two

statutes evince a similar underlying purpose and the

distinction drawn by the Board may seem to some to be

less than compelling, particularly in light of the serious

consequences that potentially flow from the distinction: in

this case, the removal of Uritsky from the United States.

Bearing in mind that we must accord Chevron deference to

the DHS's construction of the statute, we start our inquiry

with reference to the plain language of the INA, specifically

its definition of “conviction.” First, the alien must have

“entered *735 a plea of guilty" as Uritsky did to the

charge of third degree sexual conduct. 8 U.S.C. §

1101(a)(48)(A)(i). Second, the court must have imposed

“some form of punishment, penalty, or restraint on the

alien's liberty[.]" 8. U.S.C. § 1101(a)(48)(A)(ii). Uritsky’s

plea and disposition under the YTA satisfies both

requirements. See Gill v. Ashcroft, 335 F.3d 574, 576 (7th

Cir.2003) ("Gill's plea of guilty satisfies part (i) of this

definition, and the term of probation satisfies part (ii)").

Furthermore, the Board's reasoning in Devison, supra,

reflected Congressional intent with respect to juvenile

adjudications and the INA. The Board accepted the

longstanding view that juvenile delinquency proceedings

are not criminal proceedings for immigration purposes.

Devison at 1365. However, the Board also recognized that

there is an intermediate realm between juvenile

proceedings, which typically apply to offenders sixteen

years old or younger, and “youthful offender adjudications,"

A-13

which affect those who commit crimes between ages

seventeen and twenty. When determining whether youthful

offender adjudications in New York represent "convictions"

under the INA, the Board reasonably compared the New

York statute to its federal counterpart. Relying upon the

distinctions drawn in Ro/dan, supra, it concluded that

Congress, in enacting 8 U.S.C. § 1101(a)(48)(A), did not

intend to bring findings of juvenile delinquency under the

definition of "conviction," but did intend that proceedings

akin to expungement or deferred adjudications should

count. Devison at 1371-72. This distinction has been

endorsed by other circuits. See, e.g., Accsta v. Ashcroft,

341 F.3d 218, 223 (3d Cir.2003) (offender "convicted" even

when charges ultimately dismissed without an adjudication

of guilt after successful completion of probation).

Turning to the instant case, the Board's decision

represented a reasonable application of Devison and Roldan

to the Michigan YTA. Assuming that the distinction between

revocable adjudications, such as those made pursuant to

the YTA, and irrevocable “status" findings of delinquency is

valid, the Board's conclusion that youthful trainee

designations in Michigan represent convictions for

immigration purposes represents the kind of "permissible

construction" of the INA sanctioned by Chevron.

[3L o [41 © Because the Michigan statute can be

distinguished from its New York and federal counterparts,

Uritsky's equal protection claim fails. The distinction

drawn by the Board has a “rational basis," which is all that

is required for it to pass constitutional muster. Ashki v.

IN F h Ci . "Under rational

basis scrutiny, a statute is ‘accorded a strong presumption

of validity’ and will be upheld if 'any reasonably conceivable

state of facts' could demonstrate that the statute is

rationally related to a legitimate government purpose." Jd.

(citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct.

2637, 125 L.Ed.2d 257 (1993)). Simply because states

take different approaches to criminal sanctions does not

mean that the Board must construe "conviction" in the

broadest possible manner in order to avoid claims of equal

A-14

protection.

For these reasons, we hold that, despite Uritsky's

designation as a "youthful trainee,” his plea of guilty to

third degree sexual conduct constitutes a "conviction" as

that term is defined by the INA.

*736 III.

The Order of the Board dated October 3, 2003 is affirmed.

C.A.6,2005.

Uritsky v. Gonzales

399 F.3d 728, 2005 Fed.App. 0108P

Briefs and Other Related Documents (Back to top)

° 03-4331 (Docket) (Oct. 15, 2003)

END OF DOCUMENT

A-15

U.S. Department of Justice

_ Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A78 652 707 -Detroit Date: Oct. 06, 2003

In re: ALEXANDER GRIGORIEVICH URITSKY

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Richard Kulics,

Esquire

ON BEHALF OF DHS: Kathleen L. Alconrn

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. §

1227(a)(2)(A)(iii)]

Convicted of aggravated felony

237(a)(2)(A)(iii), I&N Act [8 US.C. §

1227(a)(2)(A)(iii)] -

Convicted of aggravated felony’

! The Department of Homeland Security (the “DHS,”

formerly the Immigration and Naturalization Service) has

charged the respondent with removability as an alien

convicted both under a law relating to sexual abuse of a

minor and a law relating to rape. The DHS therefore

included two charges under section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1

227(a)(2)(A)(iii) in the Notice to Appear.

B-1

APPLICATION: Termination

On April 3, 2003, an Immigration Judge found that the

respondent had not been convicted for immigration purposes

and terminated the removal proceedings against him. The

Department of Homeland Security, (the “DHS,” formerly the

Immigration and Naturalization Service) has appealed from

this decision. The appeal will be sustained, and the

respondent will be ordered removed from the United States.

The record will be remanded for the limited purpose of

allowing the respondent to designate a country of removal.

I. BACKGROUND

The respondent is a native of Ukraine and a citizen of

Israel. He entered the United States in 1996 as a

nonimmigrant and adjusted his status to that of a lawful

permanent resident on January 4, 2002. On September 24,

2002, he was convicted of criminal sexual conduct in the

third degree. The DHS charged him with removability on

the basis of this crime. The Immigration Judge, however,

found that because the respondent had been granted

youthful trainee status under Michigan law, he did not have

a “conviction” for the purposes of section 101(a)(48)(A) of

the Immigration and Nationality Act, 8 U.S.C. § 1101

(a)(48)(A). The Immigration Judge therefore determined

that the respondent was not removable as charged and

terminated the proceedings against him. The DHS has

appealed from this decision.

B-2

On appeal, the DHS argues that Michigan’s procedure

for granting youthful trainee status is not analogous to the

procedure for making a finding of delinquency under the

Federal Juvenile Delinquency Act. Specifically, the DHS

maintains that a judge may rescind youthful trainee status

at any time before the completion of the probation or

sentence imposed and enter a criminal conviction. In

addition, an individual must successfully complete

probation before his or her conviction is eliminated. Given

these facts, the DHS contends that youthful trainee status is

essentially a rehabilitative expungement rather than a

finding of juvenile delinquency. Thus, the DHS claims that

our ruling in Matter of Roldan, 22 1&N Dec. 512 (BIA

1999) rather than our ruling in Matter of Devison, 22 \&n

Dec. 1362 (BIA 2001) applies to the respondent’s case.

And the DHS maintains that, under this precedent, the

respondent has been convicted for immigration purposes

and is removable as charged.

Il. CONVICTION UNDER SECTION 101(a)(48)(A) OF

THE ACT

We agree with the DHS that the respondent has been

convicted for immigration purposes. In Matter of Devison,

supra, we found that an adjudication of youthful offender

status pursuant to N.Y. Crim. Pro. Law § 720 does not

constitute a conviction under section 101(a)(48)(A) of the

Act because it is analogous to a determination of juvenile

delinquency under the Federal Juvenile Delinquency Act,

18 U.S.C. §§ 503 1-5042 (1994 & Supp. 111996)

(“FJDA”), in several ways, the most notable being that,

once an individual is determined to be a youthful offender

under New York law, his or her conviction is vacated.

B-3

Because the vacation of the conviction does not depend on

the individual’s future good behavior, we found that the

adjudication is not an expungement or other rehabilitative

act. Matter of Devison, supra, at 1371-2, 1376-77.

Moreover, we concluded that a youthful offender

adjudication does not, in fact, fit within the scope of the

definition of the term “conviction” contained in seciion

101(a)(48)(A) of the Act. Jd.

In the present case, the respondent was sentenced as a

youthful trainee under MCL § 762.11 et seq. for his

offense of criminal sexual conduct in the third degree. The

respondent claims that MCL § 762.11 is analogous to the

FJDA and New York law, but we disagree. As the DHS has

explained, a criminal action against an individual is not

completely vacated under Michigan law until an individual

completes his or her probation or sentence. See MCL §

762.14. And a judge may revoke the youthful trainee status

at any time. See MCL § 76212. These distinctions between

the Michigan youthful trainee program and the FJDA are

significant and make the Michigan program more

analogous to a rehabilitative expungement than an

adjudication of juvenile delinquency. See Matter of

Devison, supra, at 1371-2, 1376-77. We therefore agree

with the DHS that the grant of youthful trainee status in the

respondent’s case qualifies as a conviction under section 1

01(a)(48)(A) of the Act.

Ill. AGGRAVATED FELONY UNDER SECTION -

101(a)(43)(A) OF THE ACT

In addition, we find that the respondent’s offense

qualifies as sexual abuse of a minor for the purposes of

section 101 (a)(43)(A) of the Act. The respondent was

B-4

convicted under MCL § 750.52(d)(1). According to this

provision, a person is guilty of criminal sexual conduct in

the third degree if the person engages in sexual penetration

with another person and that other person is at least 13

years of age and under 16 years of age. This offense, by its

terms, qualifies as “sexual abuse of a minor” for the

purposes of section 1101(a)(43)(A) of the Act. See Matter

of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999)

(finding that “sexual abuse of a minor” includes “the

employment, use, persuasion, inducement, enticement or

coercion of a child to engage in, or assist another person to

engage in sexually explicit conduct”); Cf United States v.

Pereira-Salmeron, 337 F.3d 1148, 1154-5 (5" Cir. 2003)

(finding that conviction for carnal knowledge of a child

constituted sexual abuse of a minor); United States v.

Vargas-Garnica, 332 F.3d 471, 474 (7" Cir. 2003) (finding

that statutory rape constitutes sexual abuse of a minor);

Mugalli v. Ashcrofi, 258 F.3d 52, 60-61 (2 Cir. 2001)

(finding that Board acted properly in finding New York

equivalent of statutory rape to be sexual abuse of a minor).

And the fact that the respondent was less than 4 years older

than the victim does not change this fact, despite the

respondent’s arguments to the contrary. See Matter of

Rodriguez-Rodriguez, supra at 996 (finding that the

definition of “sexual abuse of a minor” in 18 U;S.C. § 2242

is too restrictive to encompass the numerous state crimes

that can be viewed as sexual abuse).

Based on the foregoing, we find that the respondent is

removable as charged. We therefore sustain the DHS’. s

appeal and we reverse the Immigration Judge’s decision to

terminate proceedings. In addition; because we find no

information to suggest that the respondent is eligible for

any form of relief from removal, we order him removed

B-5

from the United States. Nevertheless, because the

Immigration Judge does not appear to have afforded the

respondent an opportunity to designate a country of

removal at his hearing, we must remand the respondent’s

case to the Immigration Judge for this limited purpose. See

Section 241(b)(2)(A) of the Act, 8 U.S.C. § 1231(b)(2)(A);

8 C.F.R. § 1240.1 O(f)(stating that the Immigration Judge

“shall afford” the alien the opportunity to designate a

country of removal).

ORDER: The DHS’s appeal is sustained.

FURTHER ORDER: The respondent is ordered removed

from the United States.

FURTHER ORDER: The record is remanded to the

Immigration Judge for the limited purpose of allowing the

respondent an opportunity to designate a country of

removal.

/s/ Frederick D. Hess

FOR THE BOARD

IMMIGRATION COURT

1155 BREWERY PARK BLVD, STE 450

DETROIT, MI 48207

In the Matter of Case No: A78-652-707

URITSKY, ALEXANDER GRIGORIEVICH

Respondent IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on 3 April

2003

This memorandum is solely for the convenience of the

parties. If the proceedings should be appealed or reopened,

the oral decision will become the official opinion in the

case.

=e respondent was ordered removed from the

United States to or in the alternative to

[ ] Respondent's application for voluntary departure

was denied and respondent was ordered removed to

alternative to

ye Respondent’s application for voluntary departure

was granted until

upon posting a bond in the amount of $

with an alternate order of removal to

[ ] Respondent’s application for asylum was ( granted

() denied () withdrawn

C-1

i a i i

[ ] Respondent’s application for withholding of '

removal was ( )granted ( ) denied ( ) withdrawn

[ ] Respondent’s application for cancellation of

removal under section 240A(a) was( ) granted ( )

denied ( ) withdrawn

[ ] Respondent’s application for cancellation of

removal was ( )granted under section 240A(b)(1) ()

granted under section 240A(b)(2) ( )denied ( )

withdrawn. If granted, it was ordered that the

respondent be issued all appropriate documents

necessary to give effect to this order.

[ ] Respondent’s application for a waiver under section

of the INA was ( ) granted ( ) denied ( )

withdrawn or ( ) other.

[ ] Respondent’s application for adjustment of status

under section of the INA was ( )granted ( )

denied ( )withdrawn. If granted, it was ordered that

respondent he issued all appropriate documents

necessary to give effect to this order.

f ] Respondent’s status was rescinded under section

246.

[ ] Respondent is admitted to the United States as a

until

{ ] Asacondition of admission, respondent is to post a

$ __ bond.

[ ] Respondent knowingly filed a frivolous asylum

application after proper notice.

[ ] Respondent was advised of the limitation on

discretionary relief for failure to appear as ordered

in the Immigration Judge’s oral decision. |

[ xX] Proceedings were terminated,

{ } Other:

Date:

Appeal: Waived/Reserved (Reserved circled) by Gov’t

Appeal due by: May 3, 2003

/s/

TERRY C. CHRISTIAN

Immigration Judge

C-3