Albert Adefemi v. John Ashcroft, et al.

Albert Adefemi, a citizen of Nigeria, petitions for review of a decision of the
Board of Immigration Appeals, challenging its determination that the Immigration
and Naturalization Service ("INS") presented sufficient evidence to demonstrate
that he could be deported on the basis of a firearms offense.

After entering the United States in 1977 without inspection, Adefemi
became a lawful temporary resident on August 17, 1987 and a permanent resident
on March 20, 1989. In 1993, the INS initiated deportation proceedings on the basis
of two theft offenses of which Adefemi was allegedly convicted in 1991. Adefemi
did not contest his deportability, applying instead for discretionary relief under
section 212(c) of the Immigration and Nationality Act ("INA"), as amended, 8
U.S.C. § 1182(c) (repealed 1996). At that time, section 212(c) authorized the
Attorney General to determine whether equitable considerations, such as a family
in the United States or a negligible criminal record, favored sparing an immigrant
the hardship of deportation. Acting on the Attorney General's authority, the same immigration judges ("IJs") who preside over deportation proceedings also
considered applications for discretionary waivers under section 212(c).

Over the course of seven years, the INS twice amended its charges against
Adefemi, eventually alleging that he was deportable on the basis of a 1991 firearms
conviction as well as the theft offenses. Adefemi was found deportable on all
grounds. An IJ deemed the INS to have established the firearms conviction "by
evidence which is clear, convincing and unequivocal." Oral Decision of the
Immigration Judge, Nov. 10, 1999, at 8. The judge then determined that Adefemi
was ineligible for a waiver of deportation under Section 212(c) because controlling
administrative precedent limited such relief to persons who are deportable for a
reason that would also warrant an alien's "exclusion" prior to admission into the
United States. Because Adefemi's firearms offense does not have an analogue in
the exclusion context, the court determined that it "m ust" find Adefemi ineligible for discretionary relief under section 212(c) because of the firearms offense. Id. at
11.

Adefemi appealed and in 2000 was denied relief by the Board of
Immigration Appeals ("BIA" or "Board"), which had earlier issued decisions
addressing other aspects of the INS's case in 1997 and 1999. Like the IJ, the
Board found that Adefemi was deportable on the basis of the firearms offense and ineligible for section 212(c) relief as a result. Adefemi filed a petition for review
with this Court, and a three-judge panel granted his motion for a stay of
deportation on M arch 5, 2001. He now raises a range of claims pertaining to his
lengthy administrative proceedings.

DISCUSSION

The upheaval in immigration law effected by two pieces of 1996 legislation,
the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214, and the Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, has raised numerous and
ponderous questions regarding both the substantive law to be applied in
immigration proceedings and the extent of federal judicial authority to review
determinations made by administrative tribunals. One particularly vexing matter
has been the extent to which convictions for certain statutorily enumerated crimes
operate as complete bars to discretionary relief from deportation. See, e.g., INS v.
St. Cyr, 533 U.S. 289 (2001). In the case before us, the parties agreed at oral
argument that a remand to allow Adefemi to apply for discretionary relief will be appropriate should we decide he is not deportable on the basis of the asserted
firearms offense.1 We therefore commence with the question of our jurisdiction to hear Adefemi's challenge to this discrete aspect of his case.

JURISDICTION

Because deportation proceedings against A defemi commenced before April
1, 1997, and a final deportation order was entered more than thirty days after
September 30, 1996, our jurisdiction is governed by former Section 106(a) of the
INA, 8 U.SC. § 1105a (1996), as amended by the transitional rules set forth in
Section 309(c) of the IIR IRA (reprinted in 8 U.S.C.A. § 1101 (historical notes)).
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276-77 (11th Cir.), reh'g en banc
denied, 275 F.3d 1085 (2001). The jurisdiction of the courts of appeals under
IIRIRA is triggered by the entrance of a "final order" of deportation. See IIRIRA,
§ 309(c)(4)(C) (providing for petition for review to be filed not later than 30 days
after date of "final order"); 8 U.S.C. § 1105a(a)(1) (referring to review of "final
deportation order"). A deportation order becomes final "upon dismissal of an appeal by the Board." 8 C.F.R. § 241.31 (2002). Because the Board did not
conclusively dismiss Adefemi's appeal until its October 4, 2000, decision, its earlier decisions in 1997 and 1999 were not final orders.2 By filing his petition for
review on November 2, 2000, 29 days after the Board dismissed his appeal,
Adefemi satisfied the 30-day timely filing requirement set forth in th e statute.
IIRIRA, § 309(c)(4)(C).

The transitional rules provide that:

there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having
committed a criminal offense covered in section
212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of
the Immigration and Nationality Act (as in effect as of
the date of the enactment of this Act). . . .

IIRIRA § 309(c)(4)(G). At the time of IIRIRA's enactment, one of the statutes
incorporated by this transitional rule directed as follows:

Any alien who at any time after entry is convicted under
any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying, or of
attempting or conspiring to purchase, sell, offer for sale,
exchange, use, own, possess, or carry, any w eapon, part,
or accessory which is a firearm or destructive device (as
defined in section 921(a) of Title 18) in violation of any
law is deportable.

INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1996).

It is by now well established that we retain jurisdiction in such cases to the
extent necessary to review whether the statutory prerequisites of Section 309 apply.
Farquharson v. U.S. Attorney Gen., 246 F.3d 1317, 1320 (11th Cir. 2001) (citing
Lettman v. Reno, 168 F.3d 463, 465 (11th Cir. 1999)); cf. Calcano-Martinez v.
INS, 533 U.S. 348, 350 n.2 (2001) (noting government's concession that "the
courts of appeals have the power to hear petitions challenging the factual
determinations thought to trigger [a substantially identical] jurisdiction-stripping
provision"). We therefore have jurisdiction to determine whether Adefemi is (1)
an alien who is (2) deportable (3) by reason of a firearms offense. Farquharson,
246 F.3d at 1320.

The transitional rule set forth in Section 309(c)(4)(G) creates a certain
ambiguity as to when an alien is deportable "by reason of a firearms offense."
Whereas the transitional rule refers generally to aliens "deportable by reason of having committed" a range of crimes, the underlying statute which it incorporates
by reference makes aliens "deportable" only when they have been "convicted
under any law" of a qualifying firearms offense. We have previously reasoned, in
examining comparable immigration provisions structured in the same fashion, that
the meaning of the term "deportable" as used in the provision limiting our
jurisdiction must be derived from the underlying statute's specification of how an
alien becomes deportable. Fernandez-Bernal v. Attorney General, 257 F.3d 1304,
1308-09 (11th Cir. 2001) (construing provisions relating to controlled substance
offenses). That is, we have jurisdiction to determine whether Adefemi is
deportable because he has been "convicted under any law" of a qualifying firearms
offense. 8 U.S.C. § 1251(a)(2)(C).

Our jurisdictional inquiry thus merges with the merits of Adefemi's
challenge, which rests on his assertion that the INS failed to prove a qualifying
firearms conviction by sufficient evidence. We therefore proceed to the merits on
the understanding that we have jurisdiction to grant relief if the government failed
to prove that Adefemi was convicted of a firearms offense.

II. SUFFICIENCY OF EVIDENCE DEMONSTRATING CONVICTION

In the administrative proceedings under review, the INS relied exclusively
on a single piece of evidence in support of its ch arge that A defemi was deportable on the basis of a firearms conviction. This was a two-sided, preprinted document
that would be colloquially termed a traffic "ticket." On the front appears a uniform
citation form used to charge drivers with moving violations. O n the reverse is
boilerplate language for use in recording several types of action taken in the City
Court of Atlanta, such as the receipt of a plea or the imposition of sentence.

The IJ determined that "Respondent waived a trial by jury, pled guilty, and
was convicted and directed to pay a fine of $330, [or in] default of such payment
be confined for a term of 12 months." Oral Decision of the Immigration Judge,
Nov. 10, 1999, at 3. The Board affirmed, but unlike the IJ, was silent as to whether
Adefemi had pled guilty. In the proceedings before these tribunals, the only
evidence presented by the INS was this two-sided document. Although Adefemi
raises several challenges to the Board's decision, his central contention is that this
ticket, the sole piece of evidence against him considered by the IJ, was insufficient
to demonstrate his deportability on the basis of a firearms conviction. See
Petitioner's Supplemental Brief at 20-26. 3

Whether a conviction has been sustained is a question of fact on which we
defer to the Board if its determination is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. 1105a(a)(4)
(repealed 1996) (applicable to this case under IIRIRA § 309(c)(4)(1)(A)). Under
this "substantial evidence" standard, we will not reverse the Board's determination
unless "a reasonable factfinder would have to conclude" that no conviction has
been proved. See Lorisme v. INS, 129 F.3d 1441, 1445 (11th Cir. 1997) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

Although our own review is deferential, the INS must prove an alien's
deportability by "clear and convincing evidence." 8 U.S.C. § 1229a(c)(3)(A);
Woodby v. INS, 385 U.S. 276, 286 (1966) (requiring "clear, unequivocal, and
convincing evidence that the facts alleged as grounds for deportation are true"). As
a court of review, we are well acquainted with the task of integrating our own
deferential review of factual determinations with the heightened burden of proof
borne by certain parties to litigation. For example, when a defendant in a criminal
case argues on appeal that the evidence was insufficient to convict him, we ask
whether a reasonable trier of fact, after viewing the evidence in the light most
favorable to the government, could find that the defendant's guilt was established
beyond a reasonable doubt. See, e.g., United States v. Miles, 290 F.3d 1341, 1355 (11th Cir.), cert. denied, 123 S. Ct. 707 (2002). Although this standard safeguards
the role of the trier of fact, it also assures that "application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury
discretion." Jackson v. Virginia, 443 U.S. 307, 318 n.10 (1979).

Here, our approach is of a similar form but different content: we ask whether
a reasonable fact finder could conclude that the government has shown Adefemi
deportable by clear and convincing evidence. Hence we must determine whether
the INS's evidence could justify the finding of a conviction by clear and
convincing evidence. Unless the record compels us to conclude that the INS failed
to meet its burden, we must affirm the decision below. If, however, no reasonable
fact finder could be persuaded that the INS made the necessary showing, we must
reverse.4 The Board found this standard satisfied by the two-sided, preprinted form relied upon by the INS as the exclusive evidence of a firearms conviction.5

In order to review this determination, we must examine this somewhat
inscrutable document carefully. We begin with the front side, on which appears a
uniform citation form. On a blank space next to the word "Offense," a handwritten
entry states that Adefemi, in violation of Section 16-11-126 of the Georgia Code,
"had a 22 cal RG10 in console between seats." Although Ga. Code Ann. 16-11-
126 proscribes the carrying of a range of concealed weapons other than firearms,
Adefemi does not contend that a "22 cal RG10" is anything other than a firearm.
Hence the citation form, which was signed by an arresting officer, alleges unlawful
possession and/or concealment of a firearm.

The BIA referred to the document's reverse side as a "criminal court
certificate of disposition," but that phrase does not appear anywhere on the copy entered in the record. Near the top of the form appear tw o identical signatures.
Both the first and the last names of the signature appear to begin with the letter
"A," and the remainder of each signature is consistent with the name Albert
Adefemi. One of the signatures indicates the waiver of a jury trial and appears
above a line stating that "On Arraignment, The Defendant Pleads NOT GUILTY."
The other signature is entered in a section titled "Plea of Guilty and Waiver." The
form provides no means of discerning Adefemi's actual plea in this case: there is
no indication that he amended an initial plea of not guilty to one of guilty, nor has
anything been written in a space provided for stating the charge to which Adefemi,
if he did enter a guilty plea, in fact admitted. Consistent with this ambiguity, none
of three boxes printed next to each of three possible pleas – guilty, not guilty, and
"nolo cont'd" – have been checked in a separate section of the form.

Below the sections bearing Adefemi's signatures is another section titled
"Disposition and Sentence," in which the word "Probation" has been rubber-stamped.
Still lower, in a separate section, the number "330.00" has been written
on a space for designating a "fine." The next line appears to state that a term of
confinement shall be served should payment be defaulted. However, the portion of
the form titled "Disposition and Sentence" has been left entirely blank apart from
the "Probation" stamp and a second stamp that reads "State Case." Significantly, nothing has been written in spaces specifically reserved for identifying the
"Sentence: Amount Fine/Forfeiture $" and the number of "Days (Months)
probated." The failure of the Atlanta City Court to complete these sections makes
it difficult to interpret the meaning of the "Probation" stamp, since the imposition
of a probationary sentence would seem to require that a term of probation be set.6

In the absence of additional evidence by which the INS might have clarified
the meaning of the form, w e do not think this document could allow a reasonable
fact finder to conclude that the INS had shown any conviction by clear and
convincing evidence. Our conclusion rests on the highly tenuous nature of any
inferences drawn from what is in essence nothing more than the front and back of a
traffic ticket, with a great many blanks left unfilled.7 While the document does indicate a fine of $330, it fails to specify the basis for this penalty. Nowhere does
it explicitly indicate the fact of conviction, the offense for which any conviction
was entered, or any specific charge to which Adefemi may have pled guilty.

Even were we to assume that the clerical stamp reading "Probation" and the
reference to a fine are evidence of some kind of conviction, we do not think it can
be said that they are clear and convincing evidence of conviction of a firearms
offense. The fact that the front side of the document lists such an offense does not
mean Adefemi pled to or was convicted of that offense, since he may well have
pled guilty to another, lesser offense. The reverse side simply fails to offer any
clear guidance as to what this offense may have been.

In sum, we think the "clear and convincing" evidentiary standard applicable
in deportation proceedings requires something more than this ambiguous ticket
before an individual may be "compelled by our Government to forsake all the
bonds formed here and go to a foreign land where he often has no contemporary
identification." Woodby, 385 U.S. at 285. We also think a reasonable factfinder
would have to conclude that the INS has not shown by clear and convincing
evidence that Adefemi was convicted of a firearms offense. Accordingly, we
reverse the decision of the BIA and remand for further proceedings consistent with this opinion.

this opinion.

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