10 Cir: Gov doesn’t have to prove conviction satisfied 6th Amend

By University of Denver Sturm College of Law

Aug 30, 2011

The U.S. Court of Appeals for the Tenth Circuit recently held that the government’s burden of proving that a noncitizen is removable does not include a requirement that it show that the underlying criminal conviction satisfied the Sixth Amendment right to counsel. Waugh v. Holder, No. 10-9551, slip op. (10th Cir. June 22, 2011) (Holmes, McKay, and Porfilio, J.). Judge McKay wrote the panel’s decision.

This case involved an LPR convicted of unlawful sexual conduct with a minor in Utah. Waugh “argued that the government had to prove, as part of its burden to establish grounds for removal by clear and convincing evidence, that the Utah conviction underlying his removal comported with his right to effective assistance of counsel as described in Padilla [v. Kentucky, 130 S.Ct. 1473 (2010)].” Waugh, No. 10-9551, slip op. at 3. “He contends that the Supreme Court’s decision in Padilla requires this expansion of the government’s burden.” Waugh, No. 10-9551, slip op. at 8. The IJ and BIA denied his claim. Waugh, No. 10-9551, slip op. at 2, 3.

The Tenth Circuit began by noting that “[t]he government bears the burden of proving by clear and convincing evidence that the alien is removable.” Waugh, No. 10-9551, slip op. at 6 (citing 8 U.S.C. § 1229a(c)(3)(A)).

The court then explained that Waugh improperly relied on the Padilla Court’s recognition that criminal law and immigration law have become increasingly intertwined over recent decades such that today “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Waugh, No. 10-9551, slip op. at 9 (discussing Padilla, 130 S.Ct. at 1480).

“Petitioner,” the court explains, “seizes on this language to argue that because deportation is an integral part of the penalty that may be imposed in a criminal proceeding, the government must prove in an immigration proceedingthat the alien received constitutionally adequate advice about the immigration consequences of his plea.” Waugh, No. 10-9551, slip op. at 9.

The Tenth Circuit disagrees. “[U]nlike petitioner, we see nothing in Padilla that would create the unique burden petitioner proposes,” the court concludes. Waugh, No. 10-9551, slip op. at 9. To hold otherwise would require “the IJ…to determine whether the conviction was constitutional as part of his assessment of the evidence supporting removal. And to determine whether a conviction comported with Padilla, in particular, the IJ would likely have to hold an evidentiary hearing to determine what advice, if any, the alien’s criminal defense counsel provided.” Waugh, No. 10-9551, slip op. at 10. The court expressed no stomach for going down this road.

The court then addressed Waugh’s “contention that his conviction was not final in light of the pending state court proceedings.” Waugh, No. 10-9551, slip op. at 11. To determine whether Waugh’s pending motion to withdraw his guilty plea in state court meant that his conviction was not final for immigration purposes, the Tenth Circuit turned to its June 2010 decision in United States v. Adame-Orozco, 607 F.3d 647 (10th Cir. 2010).

In Adame-Orozco, the court interpreted INA § 237(a)(2)(A)(iii) (the aggravated felony ground of removal) and INA § 101(a)(48)(A) (the INA’s definition of “conviction”) to mean “that while an alien may have the right to pursue appellate or collateral relief for an aggravated felony conviction under various provisions of state and federal law, the government need not wait until all these avenues are exhausted before deporting him.” Adame-Orozco, 607 F.3d at 653.

Reiterating that position, the Waugh Court explained, “From this, ‘it follows that an alien is lawfully deportable as soon as the formal judgment of guilt is entered by a trial court.’” Waugh, No. 10-9551, slip op. at 12 (quoting Adame-Orozco, 607 F.3d at 653). This would seem to mean that a person could be removed on the basis of a conviction that is later overturned on direct appeal. At that point, the post-departure bar would preclude the IJ or BIA from reopening removal proceedings if the person is outside the United States.