                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 7, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                              FOR THE TENTH CIRCUIT


    IOAN JOHN VASILIU,

                Petitioner,

    v.                                                    No. 10-9563
                                                      (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before MATHESON, McKAY and EBEL, Circuit Judges.


         Ioan John Vasiliu petitions for review of a final order of removal by the

Board of Immigration Appeals (BIA), affirming an immigration judge’s

determination that he is removable as a criminal alien. We dismiss the petition

for lack of jurisdiction.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mr. Vasiliu is a native and citizen of Romania who was admitted to the

United States as a permanent resident in 1982. In 1991, he pled guilty in New

York to criminal possession of a weapon. In 2002, he pled guilty in Oklahoma to

assault and battery/domestic abuse and was sentenced to a one-year term of

imprisonment, which was suspended. Based upon these convictions, the

Department of Homeland Security served Mr. Vasiliu with a notice to appear in

August 2009, charging him with removability pursuant to 8 U.S.C.

§§ 1227(a)(2)(A)(iii) (applicable to aliens convicted of aggravated felonies);

1227(a)(2)(C) (applicable to aliens convicted of certain firearms violations); and

1227(a)(2)(E)(i) (applicable to aliens convicted of crimes of domestic violence).

      In a hearing before an immigration judge (IJ), Mr. Vasiliu admitted all of

the allegations in the notice to appear and conceded removability pursuant to the

cited statutory provisions. He did not submit any application for relief from

removal. He represented, however, that his domestic-abuse conviction had been

reopened by the Oklahoma state court and his New York firearms conviction had

been overturned. The IJ granted Mr. Vasiliu a continuance to allow him to obtain

documentation to support his claims that the criminal convictions supporting the

removability charge were not final. He subsequently submitted to the

Immigration Court a copy of an application for post-conviction relief that he had

filed in Oklahoma state court regarding his domestic-abuse conviction.




                                         -2-
      The IJ issued a written decision finding that Mr. Vasiliu had conceded

removability based on the three charges against him, including the charge under

§ 1227(a)(2)(A)(iii) that he was removable as an aggravated felon, defined in

8 U.S.C. § 1101(a)(43)(F) as “a crime of violence . . . for which the term of

imprisonment [is] at [] least one year.” The IJ noted his application for

post-conviction relief, but found that his Oklahoma conviction for domestic abuse

was a final conviction based on his guilty plea, which was not appealed and had

not been vacated. The IJ held that Mr. Vasiliu was ineligible for relief from

removal and therefore ordered him removed to Romania.

      Mr. Vasiliu appealed to the BIA, which issued a brief order affirming the

IJ’s decision for the reasons stated therein. Addressing his contention that his

guilty plea to domestic abuse was constitutionally defective under Padilla v.

Kentucky, 130 S. Ct. 1473 (2010), the BIA agreed with the IJ that there was no

evidence in the record that the conviction had been invalidated on that basis. The

BIA stated the Padilla “decision has done nothing to alter the longstanding rule

that, unless the judgment is void on its face, a conviction cannot be collaterally

attacked in removal proceedings.” Admin. R. at 3.

      Mr. Vasiliu raises a single contention on appeal, asserting that his

domestic-abuse conviction should be vacated because his criminal defense

counsel provided constitutionally ineffective assistance by failing to advise him

regarding the removal consequences of his guilty plea. He relies on the Supreme

                                         -3-
Court’s holding in Padilla, that the Sixth-Amendment right to effective assistance

of counsel requires criminal defense counsel to inform a client whether a guilty

plea carries a risk of deportation. See 130 S. Ct. at 1486.

      The government argues that, under 8 U.S.C. § 1252(a)(2)(C), this court

does not have jurisdiction to review the BIA’s order finding Mr. Vasiliu

removable as an aggravated felon. See id. (depriving courts of jurisdiction to

review removal orders against criminal aliens, including aggravated felons

covered by § 1227(a)(2)(A)(iii)). This jurisdictional prohibition is qualified by

§ 1252(a)(2)(D), however, which provides that “[n]othing in [§ 1252(a)(2)(C)]

which limits or eliminates judicial review[] shall be construed as precluding

review of constitutional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals.” As we explained in Vargas v.

Department of Homeland Security, 451 F.3d 1105, 1107 (10th Cir. 2006), the

combined effect of these interactive provisions grants us jurisdiction over orders

removing aggravated felons, but only insofar as the petition for review raises

constitutional or legal challenges to the removal order.

      The government maintains that our jurisdiction under § 1252(a)(2)(D)

extends only to the review of colorable constitutional claims and that

Mr. Vasiliu’s Padilla claim is substantively meritless. But whether his contention

has merit or not, we cannot address it because a challenge to an alien’s criminal




                                         -4-
conviction, upon which a removal order is based, is beyond the scope of removal

proceedings. See Trench v. INS, 783 F.2d 181, 183-84 (10th Cir. 1986).

      Like Mr. Vasiliu, the petitioner in Trench argued in his deportation

proceeding that he had been denied effective assistance of counsel when his

criminal defense counsel failed to advise him of the possibility of deportation as a

result of his guilty pleas. See id. at 183. While noting this constitutional

question remained unsettled at that time, we did not reach the issue because “an

alien cannot collaterally attack the legitimacy of a state criminal conviction in a

deportation proceeding.” Id. at 184. We explained that administrative removal

proceedings are not “a forum reasonably adapted to ascertaining the truth of the

claims raised.” Id. (quotation omitted). Rather, “[i]mmigration authorities must

look solely to the judicial record of final conviction and may not make their own

independent assessment of the validity of [an alien’s] guilty plea.” Id. (quotation

omitted). Thus, “[o]nce the conviction becomes final, it provides a valid basis for

deportation unless it is overturned in a post-conviction proceeding.” Id.

(quotation omitted); see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29

(10th Cir. 2005) (following consensus view that conviction vacated on the merits

in state-court post-conviction proceeding cannot support removal).

      Even after our jurisdiction to review removal orders against aggravated

felons was partially restored by § 1252(a)(2)(D), to the extent a petition raises

“constitutional claims or questions of law,” we have adhered to the rule that

                                          -5-
collateral challenges to predicate criminal convictions “are beyond the scope of

these proceedings,” Vargas, 451 F.3d at 1107 (declining to consider due-process

claims with respect to aggravated-felony conviction, including claim that criminal

defense counsel told alien guilty pleas would not subject him to deportation).

And the Supreme Court’s decision in Padilla did not alter that rule. See Garcia v.

Holder, ___ F.3d ___, 2011 WL 1105591, at *6 (6th Cir. 2011) (holding alien

could not raise in immigration proceeding a claim of ineffective assistance of

criminal defense counsel based on holding in Padilla).

      Mr. Vasiliu may challenge, in a proper forum, the constitutionality of his

guilty plea resulting in his domestic-abuse conviction. Indeed, he has raised his

claim of ineffective assistance in his state-court application for post-conviction

relief. But he may not collaterally attack that conviction in this removal

proceeding. 1 Because the only constitutional objection asserted in the petition

raises collateral issues that are, for established reasons, categorically beyond the

scope of our review, we lack jurisdiction over the proceeding.




1
       To the extent Mr. Vasiliu contends that the removal order itself violates due
process because of his counsel’s ineffective assistance with respect to his guilty
plea to domestic abuse, such a claim would necessarily require us to determine
the merits of his collateral attack on that conviction.

                                         -6-
The petition for review is DISMISSED.


                                        Entered for the Court



                                        Monroe G. McKay
                                        Circuit Judge




                               -7-
