     07-5629-ag
     Roman v. Mukasey


 1                         UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2008
 6
 7
 8   (Argued: October 3, 2008                 Decided: January 21, 2009)
 9
10                             Docket No. 07-5629-ag
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   EDDY JOHNNY ROMAN,
15
16                  Petitioner,
17
18                  -v.-                                    07-5629-ag
19
20   MICHAEL B. MUKASEY, Attorney General
21   of the United States,
22
23                  Respondent.
24
25   - - - - - - - - - - - - - - - - - - - -x

26          Before:           JACOBS, Chief Judge, MINER and SOTOMAYOR,
27                            Circuit Judges.
28
29          Petitioner Eddy Johnny Roman seeks review of a November

30   21, 2007 order of the Board of Immigration Appeals affirming

31   the May 17, 2006 decision of Immigration Judge Jeffrey S.

32   Chase finding Roman inadmissible and ordering him removed to

33   the Dominican Republic.         Roman argues, principally, that the

34   Immigration Judge erred in relying on Roman’s admissions

35   (through his lawyer) as evidence of a prior conviction

36   establishing his removability.         The petition is denied.
 1                               ALAN MICHAEL STRAUSS (Stanley H.
 2                               Wallenstein, on the brief), New
 3                               York, New York, for Petitioner .
 4
 5                               GREGORY M. KELCH, Attorney, U.S.
 6                               Department of Justice (Gregory
 7                               G. Katsas, Acting Assistant
 8                               Attorney General; James E.
 9                               Grimes, Senior Litigation
10                               Counsel, on the brief),
11                               Washington, DC , for Respondent.
12
13   PER CURIAM:
14
15       Petitioner Eddy Johnny Roman, a native and citizen of

16   the Dominican Republic and a lawful permanent resident of

17   the United States, seeks review of a November 21, 2007 order

18   of the Board of Immigration Appeals (“BIA”) affirming the

19   May 17, 2006 decision of Immigration Judge (“IJ”) Jeffrey S.

20   Chase finding Roman inadmissible and ordering him removed to

21   the Dominican Republic.   In re Eddy Johnny Roman, No. A 40

22   520 891 (B.I.A. November 21, 2007), aff’g No. A 40 520 891

23   (Immig. Ct. N.Y. City May 17, 2006).   Roman argues that the

24   IJ was prohibited, as a matter of law, from relying entirely

25   on admissions made by Roman (through his lawyer) to

26   establish his removability based on a prior conviction.     We

27   conclude that this argument has no merit.   Accordingly, the

28   petition is denied.

29



                                   2
1                                   I

2         On or about January 10, 2004, Roman arrived at John F.

3    Kennedy Airport in New York City and applied for admission

4    as a returning lawful permanent resident.      The Department of

5    Homeland Security (“DHS”) denied Roman admission.      On June

6    5, 2004, DHS served Roman with a Notice to Appear (“NTA”)

7    stating that he was inadmissible as an “arriving alien”

8    because he had been convicted of the crime of attempted

9    criminal sale of a controlled substance in the third degree

10   in violation of Section 110/220.39 of the New York State

11   Penal Law.    DHS charged Roman with removability under INA

12   § 212(a)(2)(A)(i)(II), which states that “any alien

13   convicted of, or who admits having committed, or who admits

14   committing acts which constitute the essential elements of

15   . . . a violation of . . . any law or regulation of a State

16   . . . relating to a controlled substance” shall be

17   inadmissible and ineligible for entry into the United

18   States. 1   8 U.S.C. § 1182(a)(2)(A)(i)(II).

19        Roman first appeared before an IJ on March 30, 2005.

20   At that hearing, Roman’s attorney stated that “we admit

          1
            In the case of an alien not admitted to the United
     States, the alien is “removable” if he or she is
     inadmissible under 8 U.S.C. § 1182. See 8 U.S.C.
     § 1229a(e)(2)(A).
                                    3
1    allegations one through three, and the basis for charge of

2    removal.”   At Roman’s next appearance, on July 27, 2005, his

3    attorney requested and was granted a six-month continuance

4    to afford time to pursue a state court order vacating

5    Roman’s conviction .

6        When Roman next appeared before the IJ on January 25,

7    2006, he explained that the motion to vacate his state

8    conviction was still pending.       The IJ granted a continuance

9    for Roman to research whether a ground for cancellation of

10   removal existed.

11       At Roman’s fourth (and final) appearance, on May 17,

12   2006, Roman’s counsel explained that she had researched

13   Roman’s attempted criminal sale conviction and concluded

14   that it was an aggravated felony rendering Roman ineligible

15   for relief from removal.   The IJ addressed Roman directly

16   and explained that he was entering an order of removal based

17   on Roman’s prior conviction, but that Roman could seek to

18   reopen the deportation proceeding if the conviction was

19   subsequently vacated.   Roman acknowledged the IJ’s statement

20   without objection.

21

22



                                     4
1                                    II

2        When, as here, the BIA adopts the decision of the IJ

3    and supplements the IJ’s decision, this Court reviews the

4    decision of the IJ as supplemented by the BIA.       See Yan Chen

5    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       We review

6    the agency’s factual findings under the substantial evidence

7    standard, treating them as “conclusive unless any reasonable

8    adjudicator would be compelled to conclude to the contrary.”

9    8 U.S.C. § 1252(b)(4)(B); see, e.g., Shu Wen Sun v. BIA, 510

10   F.3d 377, 379 (2d Cir. 2007).       We review underlying

11   questions of law and the application of law to fact de novo.

12   See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir. 2008).

13       Because Roman has been convicted of a

14   controlled-substance offense, we lack jurisdiction to review

15   his petition, except to the extent he presents

16   constitutional claims or questions of law.       See 8 U.S.C.

17   § 1252(a)(2)(C)-(D); Xiao Ji Chen v. U.S. Dep’t of Justice,

18   434 F.3d 144, 151 (2d Cir. 2006).       Roman raises one legal

19   question: was the IJ prohibited from relying on Roman’s own

20   admissions (through his attorney) as the sole evidence

21   establishing removability based on a prior conviction?

22



                                     5
1        The actions of the IJ were explicitly authorized by

2    8 C.F.R. § 1240.10(c), which provides (in relevant part):

 3             The immigration judge [presiding over a
 4             removal proceeding] shall require the
 5             respondent to plead to the notice to appear
 6             by stating whether he or she admits or
 7             denies the factual allegations and his or
 8             her   removability   under    the    charges
 9             contained therein.      If the respondent
10             admits the factual allegations and admits
11             his or her removability under the charges
12             and the immigration judge is satisfied that
13             no issues of law or fact remain, the
14             immigration   judge  may   determine    that
15             removability    as   charged     has    been
16             established by the admissions of the
17             respondent.
18
19   8 C.F.R. § 1240.10(c).    Roman does not argue that issues of

20   fact or law remained that should have prevented the IJ from

21   ruling.

22       Roman argues that aliens and their attorneys are often

23   confused about prior convictions and that the government

24   should be required in all cases to submit evidence proving a

25   conviction.   But Roman does not allege that the admissions

26   were inaccurate or that the lawyer representing him before

27   the IJ was ineffective.    We decline Roman’s invitation to

28   hold that an alien’s admissions cannot constitute clear and

29   convincing evidence of removability in a case in which

30   removability is premised on a prior conviction.     See Singh

31   v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 78 (2d Cir.

32   2008) (“Because of [the petitioner’s] status as a permanent

                                    6
1    resident, the government bears the burden of proof, which it

2    could only meet by adducing clear, unequivocal, and

3    convincing evidence that the facts alleged as grounds for

4    deportation are true.” (quotation marks and citations

5    omitted)); see also Barragan-Lopez v. Mukasey, 508 F.3d 899,

6    905 (9th Cir. 2007) (“Barragan-Lopez’s own admissions

7    constitute clear, convincing, and unequivocal evidence, and

8    therefore we conclude that the government met its

9    evidentiary burden of demonstrating removability.”).

10       The NTA prepared by DHS identified the date and nature

11   of Roman’s state convictions, as well as the statutory basis

12   for his removal.    There is no legal or constitutional error

13   in the IJ and BIA’s determination that Roman’s admission of

14   removability--which explicitly admitted the allegations in

15   the NTA “and the basis for the charge of removal”--satisfied

16   the government’s evidentiary burden.    “[W]hen an admission

17   is made as a tactical decision by an attorney in a

18   deportation proceeding, the admission is binding on his

19   alien client and may be relied upon as evidence of

20   deportability.”    Matter of Velasquez, 19 I. & N. Dec. 377,

21   382 (B.I.A. 1986); cf. Ali v. Reno, 22 F.3d 442, 446 (2d

22   Cir. 1994) (alien bound by counsel’s admission that a timely

23   answer had not been filed).

24       For the foregoing reasons, the petition is denied.



                                    7
