12-4510
Sutherland v. Holder




                       UNITED STATES COURT OF APPEALS

                             FOR THE SECOND CIRCUIT

                              ___________________

                              August Term, 2013
          (Argued: December 10, 2013        Decided: October 8, 2014 )

                               Docket No. 12-4510
                              ___________________

                          ARLENE ANITA SUTHERLAND,

                                                               Petitioner,
                                        v.

         ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                                                               Respondent.

                              ___________________


Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.

       Petitioner Arlene Anita Sutherland (“Sutherland”) seeks review of an
October 19, 2012 decision of the Board of Immigration Appeals (the “BIA”)
affirming the August 31, 2011 decision of an Immigration Judge ordering her
removed from the United States. The BIA found that Sutherland’s 1997 Arizona
state conviction for attempted possession for sale of four or more pounds of
marijuana constituted a controlled substance offense and an aggravated felony
that rendered her removable, despite the state court’s intervening vacatur of that
conviction. It reasoned that Sutherland’s vacated conviction remained valid for
purposes of establishing her removability, because she sought and obtained
vacatur under Arizona Revised Statutes § 13-907 solely for rehabilitative reasons

                                        1
and to avoid the adverse immigration consequences of her conviction. Because
Sutherland’s conviction stands for federal immigration purposes, the agency’s
decision was supported by the record and we lack jurisdiction over her petition
for review.

      PETITION DISMISSED.

                              ___________________

            JOSHUA BARDAVID, New York, N.Y., for Petitioner.

            VIRGINIA LUM, Trial Attorney, Office of Immigration
                  Litigation, Civil Division (Stuart F. Delery, Assistant Attorney
                  General, Nancy E. Friedman, Senior Litigation Counsel, on the
                  brief), United States Department of Justice, Washington, D.C.,
                  for Respondent.
                               ___________________

PER CURIAM:

      Petitioner Arlene Anita Sutherland (“Sutherland”), a native and citizen of

Jamaica, seeks review of an October 19, 2012 decision of the Board of

Immigration Appeals (the “BIA”) affirming the August 31, 2011 decision of an

Immigration Judge (the “IJ”). The BIA found her removable under 8 U.S.C.

§ 1227(a)(2)(B)(i) for having been convicted of a controlled substance offense and

§ 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, based on

her 1997 Arizona state conviction for attempted possession for sale of four or

more pounds of marijuana. The issue before us is whether Sutherland’s

conviction remains valid for federal immigration purposes even after the state

                                        2
court vacated it under Arizona Revised Statutes (“ARS”) § 13-907. We find that

the record supports the agency’s determination that Sutherland’s conviction

remains a removable offense because she sought and obtained vacatur solely for

rehabilitative reasons and to avoid adverse immigration consequences.

Therefore, Sutherland’s conviction remains valid for federal immigration

purposes, and we lack jurisdiction over her petition for review. See 8 U.S.C.

§ 1252(a)(2)(C).


                                 BACKGROUND

      In 1997, Sutherland, then a lawful permanent resident of the United States,

pleaded guilty to attempted possession for sale of four or more pounds of

marijuana in violation of Arizona law. She was placed on probation for three

years and ordered to complete 360 hours of community service. She suffered no

immediate immigration consequences as a result of her conviction.

      In 2006, Sutherland applied for naturalization. The U.S. Department of

Homeland Security denied her application on account of her 1997 conviction and

charged her as subject to removal under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien

convicted of a violation of a law relating to a controlled substance, “other than a

single offense involving possession for one’s own use of 30 grams or less of


                                         3
marijuana,” and under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an

aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Sutherland admitted to

her conviction before the IJ, but declined to concede that she was removable as

charged.

      While her removal proceeding was pending, Sutherland applied in

Arizona Superior Court to vacate her conviction pursuant to ARS § 13-907. In

her application, Sutherland stated that since her conviction, she had fulfilled the

conditions of her probation, earned a Bachelor of Arts degree in business, opened

her own retail store, and become an active member of her community in

Rochester, New York. She asserted that her conviction marred her otherwise

clean record and caused unwarranted adverse immigration consequences. In

2011, the Arizona Superior Court granted her application without reservation.

      Sutherland subsequently moved the immigration court to terminate her

removal proceedings on the ground that her conviction had been vacated. The IJ

declined to do so because Sutherland had obtained vacatur in order to avoid

adverse immigration consequences, not to cure a defect in her underlying

criminal proceeding. The IJ ordered Sutherland removed to Jamaica, finding that

Sutherland’s admission of the state conviction constituted a concession of her



                                         4
removability, and alternatively, determining that her conviction constituted an

aggravated felony drug trafficking offense rendering her removable and

ineligible for several forms of relief, including cancellation of removal and

voluntary departure. The BIA affirmed the IJ’s decision, and rejected

Sutherland’s argument that the IJ had erroneously assigned her the burden of

proving the underlying basis for vacatur.

      Sutherland has timely petitioned for review. She again argues that the

agency erred in assigning her the burden of establishing that her vacated

conviction is no longer valid for immigration purposes and that the government

did not satisfy its burden in this regard because it submitted no evidence

regarding vacatur. Although we are very sympathetic to Sutherland’s

circumstances, the law compels us to dismiss her petition.


                                  DISCUSSION

      We lack jurisdiction to review a final order of removal against an alien,

such as Sutherland, who is removable by reason of a conviction for a controlled

substance offense and an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C).

However, we retain jurisdiction to consider “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(D). Similarly, we always have “jurisdiction to review


                                         5
the underlying jurisdictional fact at issue – namely, whether [Sutherland] has

been convicted of an aggravated felony.” Sui v. INS, 250 F.3d 105, 110 (2d Cir.

2001). “The jurisdictional inquiry thus merges with the question on the merits: If

[Sutherland] is in fact removable because [s]he was convicted of an aggravated

felony . . . , we must dismiss h[er] petition for lack of jurisdiction, while if [s]he is

not removable . . . , we may exercise jurisdiction and vacate the order of

removal.” Id.1

      This case is controlled by Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007).

There, we held that the BIA reasonably concluded “that an alien remains

convicted of a removable offense for federal immigration purposes when the

predicate conviction is vacated simply to aid the alien in avoiding adverse

immigration consequences and not because of any procedural or substantive

defect in the original conviction.” Id. at 25. Here, Sutherland applied to vacate

her Arizona state conviction pursuant to ARS § 13-907. The Ninth Circuit has

held that any conviction vacated under ARS § 13-907 is vacated on rehabilitative

grounds and thus remains valid for immigration purposes. See Poblete Mendoza

      1
           The scope and standards of review are neither contested nor determinative.
We review the decision of the IJ as supplemented by the BIA, Gertsenshteyn v. U.S. Dep’t
of Justice, 544 F.3d 137, 142 (2d Cir. 2008), and review the agency’s factual findings for
substantial evidence and issues of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
                                            6
v. Holder, 606 F.3d 1137, 1141–42 (9th Cir. 2010). A conviction vacated under § 13-

907 remains admissible in any subsequent state criminal prosecutions as if the

conviction had never been vacated. See Ariz. Rev. Stat. § 13-907(C)(1). To the

Ninth Circuit, this admissibility established that vacatur under § 13-907 is not

based on a defect in the underlying conviction. See Poblete Mendoza, 606 F.3d at

1142. We agree.

       Sutherland argues that because she used the phrase for “good cause

appearing” in her vacatur application, the state court may have vacated her

conviction for “good cause” unrelated to rehabilitation or her desire to avoid

deportation.2 Specifically, Sutherland posits that the state court may have




       2
          Sutherland also argues that the agency erred in assigning her the burden of
proving that her conviction was no longer valid for purposes of establishing
removability. In removal proceedings, the government bears the burden of proving by
clear and convincing evidence that an admitted alien, such as Sutherland, is removable
as charged. See 8 U.S.C. § 1229a(c)(3); see also Aslam v. Mukasey, 537 F.3d 110, 115–16 (2d
Cir. 2008). The burden then shifts to the alien to produce evidence that she is not
removable or that she is eligible for relief from removal. See 8 U.S.C. § 1229a(c)(4); see
also Aslam, 537 F.3d at 115–16. If an alien presents evidence that a predicate conviction
has been vacated, we have not decided whether the government or the alien bears the
burden of demonstrating the underlying basis for vacatur and, as a result, the continued
validity of the conviction for purposes of establishing removability. The Sixth, Ninth,
and Tenth Circuits have held that the government bears the burden. See Barakat v.
Holder, 621 F.3d 398, 403–04 (6th Cir. 2010); Nath v. Gonzales, 467 F.3d 1185, 1188–89 (9th
Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005). We do not reach
that issue here because, regardless of who bore the burden, Sutherland’s evidence
demonstrated that her vacated conviction remained valid for immigration purposes,
                                            7
vacated her conviction pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), which

held that an attorney is ineffective for failing to advise a client of the immigration

consequences of a guilty plea. Sutherland’s speculation runs aground on the

record. Her application to the state court detailed only rehabilitative and

immigration-related reasons in support of vacatur, and her counsel admitted

before the IJ that Sutherland had not sought vacatur pursuant to Padilla.

Moreover, even if she had raised a Padilla claim, it would have failed: Her 1997

conviction became final before Padilla was decided, and Padilla does not apply

retroactively. See Chaidez v. United States, --- U.S. -----, 133 S. Ct. 1103, 1113 (2013).

      Accordingly, the record establishes that Sutherland sought and obtained

vacatur of her conviction solely for rehabilitative reasons and to avoid adverse

immigration consequences, and so her conviction remains valid for purposes of

establishing removability. See Saleh, 495 F.3d at 25. Because Sutherland remains

convicted of a controlled substance offense and an aggravated felony for federal




and remand for the government to resubmit that evidence would be “an idle and
useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969).

                                            8
immigration purposes,3 we lack jurisdiction over her petition. See 8 U.S.C.

§ 1252(a)(2)(C); see also Saleh, 495 F.3d at 25; Sui, 250 F.3d at 110.


                                    CONCLUSION

      The sad truth of this case is that petitioner’s removability only came to

light after she applied for citizenship. For almost seventeen years, she has owned

and operated a business and by all accounts was a productive member of our

society. Now, she will be returned to Jamaica and her community here will be

the poorer for it. The Attorney General may, of course, review this matter in the

exercise of his discretion in immigration matters. The petition for review is

DISMISSED and any outstanding motions are DENIED as moot.




      3
         Because Sutherland has abandoned the argument that she presented to the BIA
that her conviction did not constitute an aggravated felony drug trafficking offense, we
do not reach it. That basis for removability alone is dispositive here. There is confusion
in the record as to whether Sutherland conceded that she was removable for having
been convicted of a controlled substance offense. Sutherland admitted to the fact of her
conviction, but declined to concede removability; her attorney later indicated that
Sutherland had conceded removability based on the controlled substance charge.
Regardless, Sutherland’s conviction for attempted possession for sale of four or more
pounds of marijuana is clearly a controlled substance offense under 8 U.S.C.
§ 1227(a)(2)(B)(i) because it does not fall under the exception for “a single offense
involving possession for one’s own use of 30 grams or less of marijuana.” The
aggravated felony charge and the controlled substance charge each provide an
independent basis for removal.
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