Pradilla v. Gonzales - Opposition

Docket number: 
No. 06-906
Supreme Court Term: 
2006 Term
Court Level: 
Supreme Court

No. 06-906

In the Supreme Court of the United States

CARLOS PRADILLA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
JENNIFER PAISNER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erroneously failed to employ the "categorical" approach of Taylor v. United States, 495 U.S. 575 (1990), in deciding whether peti tioner was convicted of violating a law "relating to a con trolled substance," 8 U.S.C. 1182(a)(2)(A)(i)(II), such that he was ineligible for a discretionary waiver of in admissibility under Section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h).

2. Whether, in cases in which Taylor's "categorical" approach is employed, the government must establish that the alien's conviction is a basis for removability by proof beyond a reasonable doubt or by clear and con vincing evidence.

In the Supreme Court of the United States

No. 06-906

CARLOS PRADILLA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-4) is not published in the Federal Reporter but is reprinted at 187 Fed. Appx. 959. The order of the district court (Pet. App. 8-9) and the report and recommendation of the magistrate judge (Pet. App. 10-40) are unreported. The decision of the Board of Immigration Appeals (Pet. App. 5-7) is not published in the Administrative Decisions Under Immigration & Nationality Laws but is avail able at 2004 WL 1167271. The decision of the immigra tion judge (Pet. App. 41-62) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 5, 2006. A petition for rehearing was denied on October 5, 2006 (Pet. App. 63-64). The petition for a writ of certiorari was filed on January 3, 2007. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Under Section 245 of the Immigration and Nation ality Act (INA), an alien is eligible to adjust his status to that of a lawful permanent resident if three require ments are satisfied: (1) the alien must make an applica tion for such adjustment; (2) the alien must be eligible to receive an immigrant visa and "admissible to the United States for permanent residence"; and (3) an immigrant visa must be immediately available to the alien at the time his application is filed. 8 U.S.C. 1255(a). An alien requesting adjustment of status assimilates himself to the position of an alien outside the United States seek ing entry as an immigrant, and thus the question of ad missibility is evaluated as of the date of the application for adjustment of status. Pet. App. 30 (citing cases).

Under Section 212(a) of the INA, 8 U.S.C. 1182(a), several classes of aliens are ineligible for admission to the United States. One such class is those who have been convicted of "a violation of (or a conspiracy or at tempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a con trolled substance (as defined in section 802 of title 21)." 8 U.S.C. 1182(a)(2)(A)(i)(II). An alien is also ineligible for admission under Section 212(a) if consular or immi gration officials know or have reason to believe that the alien "is or has been an illicit trafficker in any controlled substance"; "is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled * * * substance"; or "endeavored to do so." 8 U.S.C. 1182(a)(2)(C)(i).

Under Section 212(h) of the INA, a discretionary waiver of inadmissibility is available to certain classes of inadmissible aliens, including aliens convicted of violat ing a law relating to a controlled substance "insofar as [the conviction] relates to a single offense of simple pos session of 30 grams or less of marijuana." 8 U.S.C. 1182(h). An alien convicted of violating a law "relating to a controlled substance" that does not relate to a single marijuana offense of that type, however, is not eligible for a discretionary waiver of inadmissibility under Sec tion 212(h). Nor is an alien who has been an "illicit traf ficker" (or aider or abettor or co-conspirator of an "illicit trafficker") in a controlled substance.

2. Petitioner is a native and citizen of Colombia. In February 1981, he entered the United States at Miami, Florida, on a tourist visa. Between February and No vember 1981, he traveled from Miami to Los Angeles, California, on three occasions. Pet. App. 11-12, 42, 47.

In July 1982, a grand jury in the Central District of California returned a 35-count indictment against peti tioner and 21 others. Pet. Mot. for T.R.O. & Prelim. Inj. Exh. I, Indictment (Indictment). Count One of the in dictment charged a conspiracy in violation of 18 U.S.C. 371, which makes it a crime to "conspire either to com mit any offense against the United States, or to defraud the United States, or any agency thereof in any manner of for any purpose." Indictment 2-18. In particular, Count One charged that petitioner and others conspired (a) to fail to file currency transaction reports for trans actions involving $10,000 or more, (b) to cause financial institutions to fail to file currency transaction reports for such transactions, (c) to use facilities in interstate commerce with the intent to distribute the proceeds of narcotics trafficking, and (d) to defraud the Internal Revenue Service. Id. at 2-4. In describing the means by which the objects of the conspiracy were accomplished, Count One alleged that the defendants collectively "pro vided a money laundering service involving currency deposits and wire transfers for major narcotics traffick ers who derived large quantities of United States cur rency from sales of cocaine" (id. at 4-5) and that peti tioner individually "collected and transferred, and caused the collection and transfer, of currency to [other] defendants" (id. at 7). The indictment also charged peti tioner with two counts of conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. 846 (Counts Two and Three), and one count of aiding and abetting possession with intent to distrib ute cocaine, in violation of 21 U.S.C. 841 and 18 U.S.C. 2 (Count Four). Indictment 19-27.

At some point in 1982, petitioner returned to Colom bia. On December 3, 1985, he again entered the United States at Miami, as a B-2 nonimmigrant visitor autho rized to stay in the country until June 2, 1986. He re mained in the United States beyond that date, however. In February 1991, he was arrested on a warrant. Pet. App. 11, 14, 42, 48.

In May 1991, petitioner pleaded guilty to Count One of the indictment. Pet. Mot. for T.R.O. & Prelim. Inj. Exh. I, Plea Tr. (Plea Tr.). At the plea proceeding, the district court asked the prosecutor what the evidence would show if the case were to go to trial. Id. at 5. In response, the prosecutor stated that the evidence would show that "other members of the conspiracy had access to large amounts of currency, which was derived from the sale of cocaine"; that petitioner "would take, deliver or transfer currency at the direction of others in the conspiracy to financial institutions"; and that, "[p]rior to the delivery of the money to the banks, certain co conspirators of [petitioner] had made an illegal agree ment with the financial institutions to fail to file the nec essary reports with the Department of Treasury." Id. at 6. The prosecutor added that petitioner "knew that the money was being transported for this purpose and knew that it was against the law." Ibid. The district court then asked petitioner whether he agreed with the facts that the prosecutor had stated. Ibid. Petitioner answered "[y]es." Ibid.

The district court sentenced petitioner to three years of probation and a fine of $1000. Pet. App. 14, 48.

3. a. In June 1992, the Immigration and Naturaliza tion Service (INS) instituted deportation proceedings against petitioner. Pet. App. 15, 43.*1 It initially al leged that petitioner was deportable on three grounds: (1) that he had been convicted of a crime relating to a controlled substance (see 8 U.S.C. 1227(a)(2)(B)(i)); (2) that he was excludable at the time of entry as an alien that a consular or immigration official knew or had reason to know had been an illicit trafficker in a controlled substance (see 8 U.S.C. 1182(a)(2)(C)(i), 1227(a)(1)(A)); and (3) that he was present in the United States in violation of law because he had remained in the country beyond the time authorized (see 8 U.S.C. 1227(a)(1)(B)). Pet. App. 15-16, 43. The INS subse quently withdrew the first and second charges of de portability. Id. at 16. Petitioner conceded that he was deportable but applied for suspension of deportation under former Section 244(a)(1) of the INA (see 8 U.S.C. 1254(a)(1) (1994)). Pet. App. 16, 43. Later, after the Department of Labor granted his application for a labor certification, petitioner filed an application for adjust ment of status. Id. at 16, 44. He also filed an applica tion for a waiver of inadmissibility under Section 212(h) of the INA. Id. at 17, 46.

b. The immigration judge (IJ) ruled that petitioner was deportable on all three of the grounds initially al leged by the INS; denied his applications for suspension of deportation, waiver of inadmissibility, and adjustment of status; and ordered him deported to Colombia. Pet. App. 41-62. The IJ held that petitioner was ineligible for suspension of deportation because he could not satisfy the statutory requirement of continuous physical pres ence in the United States for seven years. Id. at 49-52; see 8 U.S.C. 1254(a)(1) (1994). The IJ held that peti tioner was ineligible for a waiver of inadmissibility on two independent grounds: he had been convicted of a violation of a law "relating to a controlled substance" (and he was therefore inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(II)); and there was reason to believe that he was an "illicit trafficker" in a controlled sub stance or a co-conspirator of an "illicit trafficker" (and he was therefore inadmissible under 8 U.S.C. 1182(a)(2)(C)(i)). Pet. App. 52-59. With respect to the former ground, the IJ reasoned that petitioner's "con viction for conspiracy" was "based on an underlying charge of traveling in interstate and foreign commerce with the intent to distribute, and thereafter distributing, the proceeds of unlawful narcotics and controlled sub stances activities." Id. at 55-56. With respect to the latter ground, the IJ reasoned that, even though peti tioner's "conviction does not include a finding of illicit trafficking in drugs," the indictment and guilty plea "provide a basis for concluding that [petitioner] had been a conspirator with others in the illicit trafficking of a controlled substance," and thus there was "reason to believe [that petitioner] was either an illicit drug traf ficker[] or involved in a conspiracy therewith." Id. at 58-59. Finally, the IJ held that petitioner was ineligible to adjust his status because he was ineligible for a waiver of inadmissibility and therefore could not satisfy the statutory requirement that he be admissible to the United States. Id. at 60.

c. Petitioner appealed to the Board of Immigration Appeals (BIA), which sustained the appeal in part and dismissed it in part. Pet. App. 5-7. The BIA held that the IJ erred in finding petitioner deportable on the grounds that had been withdrawn by the INS. Id. at 6. But it held that the IJ correctly found petitioner ineligi ble for a waiver of inadmissibility, because he had been convicted of an offense relating to controlled substances, and correctly found petitioner ineligible for suspension of deportation, because he was not continuously present in the United States for seven years. Id. at 6-7. The BIA did not reach the question whether petitioner was ineligible for a waiver of inadmissibility on the inde pendent ground that there was reason to believe that he was an illicit trafficker in a controlled substance. Ibid.

4. Petitioner challenged the agency's decision in a petition for a writ of habeas corpus. The district court referred the petition to a magistrate judge for a report and recommendation.

a. The magistrate judge recommended that the peti tion be denied. Pet. App. 10-40. As relevant here, the magistrate judge concluded that the agency had cor rectly ruled that petitioner was ineligible for a waiver of inadmissibility, both because he had been convicted of a violation of a law "relating to a controlled substance" and because there was reason to believe that he was an "illicit trafficker" in a controlled substance (or at least an aider and abettor or co-conspirator of an "illicit traf ficker"). Id. at 25-37. With respect to the former ground, the magistrate judge reasoned that "[t]he alle gations in Count I [of the indictment] demonstrate that the petitioner's conspiracy conviction is so closely re lated to the underlying drug offenses * * * as to be a conviction 'relating to' a controlled substance." Id. at 33-34. With respect to the latter ground, the magistrate judge reasoned that it was permissible to consider "not only the petitioner's conviction but 'credible evidence' that the petitioner has trafficked in drugs"; that "[s]uch evidence could include the other counts in the indict ment and the petitioner's plea colloquy"; and that, "[o]n those bases," there was "reason to believe" that "the petitioner had been an illicit drug trafficker or at the very least a knowing assistor or conspirator in the illicit trafficking of drugs." Id. at 36 (quoting Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992)).

b. The district court overruled petitioner's objection to the magistrate judge's report and recommendation, adopted the report and recommendation, and entered an order denying the petition for a writ of habeas corpus. Pet. App. 8-9.

5. The court of appeals converted petitioner's habeas corpus petition into a petition for review and denied the petition in an unpublished per curiam opinion. Pet. App. 1-4; see REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Tit. I, § 106(a), 119 Stat. 311 (to be codified at 8 U.S.C. 1252(a)(5)) (providing that "a petition for re view filed with an appropriate court of appeals * * * shall be the sole and exclusive means for judicial review of an order of removal"). The court stated that "the pe tition is without merit for reasons fully discussed at oral argument." Pet. App. 4.

ARGUMENT

1. Petitioner contends (Pet. 9-21) that the "categori cal" approach of Taylor v. United States, 495 U.S. 575 (1990), must be employed in deciding whether an alien has been convicted of violating a law "relating to a con trolled substance," 8 U.S.C. 1182(a)(2)(A)(i)(II), such that the alien is ineligible for a discretionary waiver of inadmissibility under Section 212(h) of the INA, 8 U.S.C. 1182(h), and that the court of appeals did not employ that approach here. As explained below, it is not clear that Taylor's "categorical" approach applies in this context; the agency and lower courts in any event ap plied it; they applied it correctly; there is no circuit con flict on the issue; and petitioner would not be entitled to relief even if his contention had merit. Further review is therefore unwarranted.

a. As this Court recently explained in Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007), "[i]n determining whether a conviction * * * falls within the scope of a listed offense" that "subjects certain aliens to removal from the United States," the courts "uniformly have applied the ['categorical'] approach this Court set forth in Taylor." Id. at 818. Taylor held that, when a court "seeks to determine whether a particular prior convic tion" satisfies the applicable federal definition, "it should normally look not to the facts of the particular prior case, but rather to the * * * statute defining the crime of conviction." Ibid. (citing Taylor, 495 U.S. at 599-600). When the criminal statute "include[s] both a * * * listed crime and * * * one or more nonlisted crimes," however, Taylor permits a court "to go beyond the mere fact of conviction" and determine whether the defendant was convicted of a listed or a nonlisted crime. Id. at 818-819 (quoting Taylor, 495 U.S. at 602). As the Court observed in Duenas-Alvarez, "some courts refer to this [second] step of the Taylor inquiry as a 'modified categorical approach.'" Id. at 819. In determining whether a defendant was convicted of a listed crime at the "modified categorical" step of the Taylor inquiry, courts are permitted to examine "the indictment or in formation and jury instructions" (if the defendant was convicted after a trial), ibid. (quoting Taylor, 495 U.S. at 602), and the "charging document," "plea agreement," "transcript of colloquy between judge and defendant," or "some comparable judicial record" of that information (if the defendant was convicted by guilty plea), ibid. (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)). See also 8 U.S.C. 1229a(c)(3)(B) (listing "docu ments or records" constituting "proof of a criminal con viction").

Taylor was a criminal case, in which the prior convic tions resulted in a higher sentence, see 18 U.S.C. 924(e), and there is reason to question whether its "categorical" approach must be applied, at least in the same way, in the deportation context. Recognizing that the Taylor methodology is informed, in part, by "constitutional con cerns * * * emanat[ing] from the Sixth Amendment," at least one court of appeals has declined to "transplant the categorical approach root and branch-without any modification whatever-into the civil removal context." Conteh v. Gonzales, 461 F.3d 45, 55 (1st Cir. 2006), peti tion for cert. pending, No. 06-9829 (filed Jan. 8, 2007). Another court has indicated that "a departure from the formal categorical approach seems warranted" at least in cases where "the terms of the statute invite inquiry into the facts underlying the conviction at issue." Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004) (Becker, J.). The BIA agrees. See In re Gertsenshteyn, 24 I. & N. Dec. 111, 112 (2007) (whether an offense relating to transportation for the purposes of prostitution was "committed for commercial advantage," such that it is an "aggravated felony" under 8 U.S.C. 1101(a)(43)(K)(ii), "may be proved by any evidence, including evidence out side the record of conviction").

Moreover, although petitioner may be correct that some version of "the 'categorical' or 'modified categori cal' approach must be used in determining whether a crime committed by an alien is a deportable offense" (Pet. 8), this case does not present the question whether the crime of which petitioner was convicted is "a de portable offense." Petitioner was found to be deport able, not because of his conspiracy conviction, but be cause he had remained in the country beyond the time authorized. Pet. App. 5-7. Indeed, petitioner conceded that he was deportable on that ground. Id. at 16, 43. The issue in this case is whether petitioner's prior con viction renders him ineligible for a discretionary waiver of inadmissibility, not whether it renders him deportable. And it is not clear that any version of the "categorical" approach must be employed in deciding that issue.

b. Even assuming that the "categorical" approach employed in Taylor must also be employed in deciding whether an alien is ineligible for a discretionary waiver of inadmissibility by virtue of having been convicted of violating a law "relating to a controlled substance," no error occurred here, because no different approach was employed. Petitioner pleaded guilty to violating the general conspiracy statute, 18 U.S.C. 371, which reaches both conduct that is related to a controlled substance and conduct that is not. Under the "modified categori cal" approach, therefore, it was appropriate to consult the indictment and the transcript of the plea colloquy in deciding whether the conduct of which petitioner was convicted was related to a controlled substance. Duenas-Alvarez, 127 S. Ct. at 819; Shepard, 544 U.S. at 26. In deciding that it was, the IJ relied exclusively on those documents, Pet. App. 47-48, 54-56, and the BIA "agree[d] with the [IJ]," id. at 6. Likewise, in recom mending that the district court deny petitioner's petition for a writ of habeas corpus challenging the agency's de cision, the magistrate judge relied exclusively on the same documents, id. at 12-15, 31-34, and the district court adopted the magistrate judge's recommendation.

After converting the petition for a writ of habeas corpus into a petition for review, the court of appeals rejected all of petitioner's contentions without explana tion. Pet. App. 4. There is no basis to conclude, how ever, that it relied on anything other than the indictment and plea colloquy in rejecting petitioner's contention that he had not been convicted of violating a law "relat ing to a controlled substance." Indeed, as far as that contention is concerned, there is no indication that the agency had any evidence before it other than the indict ment, plea agreement, transcript of plea colloquy, and judgment of conviction, see id. at 42, all of which could permissibly be considered under the "modified categori cal" approach described in Taylor. And since, on peti tion for review of a removal order, a court of appeals' review of the agency's decision is limited to the evidence in the administrative record, 8 U.S.C. 1252(b)(4)(A), there does not appear to be any basis for the court of appeals to have decided the case other than in accor dance with Taylor.

Petitioner claims that "[t]he IJ based his conclusion that [petitioner's] crime was related to a controlled sub stance on the fact that 'Count 3' of the Indictment-a Count for which [petitioner] was charged but never con victed-alleged that he was involved in drug trafficking activities." Pet. 6 (citing Pet. App. 54). The IJ's refer ence to "Count Three," however, was clearly a reference to the third object of the conspiracy charged in Count One, as the language immediately following the refer ence makes clear. Compare Pet. App. 54 (IJ decision) ("[Petitioner] was charged in Count Three of the Indict ment with traveling in interstate and foreign commerce with the intent to distribute, and thereafter distributing, the proceeds of unlawful narcotics and controlled sub stances activities.") with Indictment 4 (Count One, Ob ject Three) (petitioner conspired to "travel in interstate and foreign commerce * * * with intent to distribute the proceeds of an unlawful activity, namely narcotics and controlled substances"). Petitioner also claims that the magistrate judge "based [his] holding on 'other counts of the indictment,' though [petitioner] was never convicted of any other charges." Pet. 7 (citing Pet. App. 34). What the magistrate judge in fact said, however, is that "[t]he allegations in Count I demonstrate that the petitioner's conspiracy conviction is so closely related to the underlying drug offenses contained in the other counts of the indictment as to be a conviction 'relating to' a controlled substance." Pet. App. 33-34. Contrary to petitioner's assertion, therefore, the IJ and magistrate judge did not "determine[]"-much less "expressly determine[]"-that petitioner's "offense related to con trolled substances on the basis of drug charges against [him] that were dismissed without ever having gone to trial." Pet. 23. The IJ and magistrate judge relied only on the charge (Count One) to which petitioner pleaded guilty. Pet. App. 31-34, 54-56.

c. Contrary to petitioner's contention, there is also no basis to conclude that the agency or courts below ap plied Taylor incorrectly. See Pet. 18 ("Had [the court of appeals] applied the categorical or modified categorical approach, it could only have reached the decision that [petitioner] was not convicted of an offense relating to a controlled substance."). Petitioner pleaded guilty to Count One of the indictment. Pet. App. 14-15, 48. That count charged him and others with conspiracy to commit four offenses against the United States, one of which was "travel[ing] in interstate and foreign commerce," "us[ing] any facility in interstate and foreign com merce," and "caus[ing] such travel and use," with the "intent to distribute the proceeds of an unlawful activity, namely narcotics and controlled substances." Indict ment 4. As means of accomplishing the objects of the conspiracy, Count One alleged that petitioner and others "provided a money laundering service involving cur rency deposits and wire transfers for major narcotics traffickers who derived large quantities of United States currency from sales of cocaine" and that petitioner per sonally "collected and transferred, and caused the col lection and transfer, of currency" to others. Id. at 4-5, 7. At the plea proceeding, in response to the district court's request for a description of what the evidence would show if the case were to go to trial, the prosecutor said that "members of the conspiracy had access to large amounts of currency, which was derived from the sale of cocaine"; that petitioner "would take, deliver or transfer currency * * * to financial institutions"; that "an ille gal agreement" had been made with the financial institu tions "to fail to file the necessary reports with the De partment of Treasury"; and that petitioner "knew that the money was being transported for this purpose and knew that it was against the law." Plea Tr. 5-6. When the district court asked petitioner whether he agreed with the facts stated by the prosecutor, petitioner an swered "[y]es." Id. at 6.

The conviction records that may permissibly be con sidered at the "modified categorical" step under this Court's decisions therefore establish that petitioner was convicted of violating a law "relating to a controlled sub stance," particularly since "[t]he phrase 'relating to' in this context has long been construed to have broad cov erage." In re Beltran, 20 I. & N. Dec. 521, 526 (B.I.A. 1992). In any event, this Court ordinarily does not grant certiorari when the asserted error consists only of "the misapplication of a properly stated rule of law." Sup. Ct. R. 10.

d. Petitioner contends (Pet. 12-18) that there is a circuit conflict on whether Taylor's "categorical" ap proach should be employed in deciding whether an alien has been convicted of an offense "relating to a controlled substance." He contends that "[t]he Ninth Circuit ap plies the categorical and modified categorical approach" to that question, while "the First, Fifth, and Sixth Cir cuits analyze the relevant statutes and underlying facts on the basis of different criteria." Pet. 17. That is not correct. Like the decisions of the agency and courts below, the decisions on which petitioner relies (Pet. 13- 16) all applied "the categorical and modified categorical approach." See Medina v. Ashcroft, 393 F.3d 1063, 1065-1066 (9th Cir. 2005) (explicitly applying "categori cal" and "'modified' categorical" approach); Peters v. Ashcroft, 383 F.3d 302, 306 (5th Cir. 2004) (relying on statute of conviction and judgment of conviction); Urena-Ramirez v. Ashcroft, 341 F.3d 51, 54 (1st Cir. 2003) (relying on statute of conviction and plea agree ment); Casteneda de Esper v. INS, 557 F.2d 79, 80 (6th Cir. 1977) (no dispute as to offense of which alien was convicted).

Petitioner contends (Pet. 14-16) that, rather than employing Taylor's "categorical" approach, the First, Fifth, and Sixth Circuits employ a "nexus" test (or something akin to one). That contention confuses apples and oranges. The "categorical" approach provides a methodology for determining the crime of which the alien was in fact convicted; the "nexus" test provides a methodology for determining whether the crime of which the alien was convicted "relat[es] to a controlled substance." Thus, in Peters, the Fifth Circuit first relied on the criminal statute and record of conviction to deter mine that the alien had been convicted of solicitation to transport marijuana for sale (383 F.3d at 306), and then it concluded that that offense "relat[es] to a controlled substance" because "there was a sufficient nexus be tween his solicitation conviction and drug-related laws" (id. at 309). Likewise, in Urena-Ramirez, the First Cir cuit first relied on the criminal statute and record of conviction to determine that the alien had been con victed of traveling in interstate commerce to promote a business enterprise involving cocaine (341 F.3d at 54), and then it concluded that that offense "relat[es] to a controlled substance" because "the Travel Act violation" was not "separate or distinct" from "the petitioner's in volvement in the cocaine trade" (ibid.). Indeed, the Ninth Circuit employs the same two-step approach. See, e.g., Johnson v. INS, 971 F.2d 340, 342-343 (1992) (rely ing on statute of conviction and information to deter mine that alien had been convicted of traveling in inter state commerce with intent to distribute narcotics pro ceeds and then concluding that that offense "relat[es] to a controlled substance" because it "direct[ly] involve[d] * * * a drug transaction"). Even if there were a circuit conflict, however, this case would not be an appropriate one for resolving it, because there is no reason to believe that the court below applied a standard other than the one that petitioner advocates. See pp. 11-14, supra.

e. If petitioner were correct in his contention that he was not ineligible for a discretionary waiver of inadmis sibility on the ground that he had been convicted of vio lating a law "relating to a controlled substance," he would still be ineligible for a waiver of inadmissibility on an independent ground. A ruling in his favor would therefore have no effect on the outcome of the case.

The IJ found that, in addition to being ineligible for a waiver of inadmissibility by virtue of having been con victed of an offense "relating to a controlled substance," petitioner was ineligible for such a waiver under 8 U.S.C. 1182(a)(2)(C)(i), because the indictment and plea colloquy provided "reason to believe" that he was an "illicit trafficker in [a] controlled substance" or a co- conspirator of an "illicit trafficker." Pet. App. 56-59. Although the BIA did not reach that question, id. at 6-7, the magistrate judge did. He came to the same conclu sion as the IJ, id. at 35-37, and the district court adopted his recommendation, id. at 8-9.

Because the court of appeals converted the habeas corpus petition into a petition for review, Pet. App. 1-4, it was reviewing the decision of the BIA rather than the district court. And because the BIA did not address the alternative ground for petitioner's ineligibility for a waiver of inadmissibility, the court of appeals probably should be presumed not to have passed on it either. There is little doubt, however, that the IJ's finding was a permissible one, and that, particularly in light of the deferential standard of review, it would be upheld by the BIA and the court of appeals. See 8 C.F.R. 1003.1(d)(3)(i) (on appeal to the BIA, "[f]acts determined by the immigration judge * * * shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous"); 8 U.S.C. 1252(b)(4)(B) (on petition for review to the court of appeals, "the adminis trative findings of fact are conclusive unless any reason able adjudicator would be compelled to conclude to the contrary"). Even if petitioner's guilty plea to Count One of the indictment did not establish that he was convicted of a crime "relating to a controlled substance," a grand jury found probable cause to believe (in Counts Two, Three, and Four) that he conspired to distribute cocaine and aided and abetted the distribution of cocaine. In dictment 19-27. In combination with petitioner's guilty plea to Count One, the grand jury's finding provided a solid basis for the IJ to find "reason to believe" that pe titioner was an "illicit trafficker" in a controlled sub stance or a co-conspirator of an "illicit trafficker." See Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992) ("it is not necessary that an alien seeking admission have been convicted, or even arrested or investigated for drug traf ficking in order to be inadmissible[;] the alien may be denied admission if officials 'know or have reason to be lieve' that the alien has trafficked in drugs").

2. Petitioner also urges the Court to grant certiorari to decide whether, when Taylor's "categorical" approach applies, "the government's standard of proof in estab lishing the grounds for removability" (Pet. 21) is proof beyond a reasonable doubt or clear and convincing evi dence. Pet. 21-23. For two independent reasons, that question is not presented in this case.

First, petitioner's conspiracy conviction was not the ground for his removability, but rather a ground that rendered him ineligible for a waiver of inadmissibility. And on the question of admissibility, it is the alien, not the government, that bears the burden of proof. See 8 U.S.C. 1229a(c)(2)(A) ("the alien has the burden of establishing * * * that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under [8 U.S.C.] 1182"); 8 U.S.C. 1361 ("[w]henever any person * * * makes application for admission, * * * the burden of proof shall be upon such person to estab lish that he * * * is not inadmissible").

Second, the fact that was the ground for petitioner's removability-that he was present in the United States in violation of law by virtue of having remained in the country beyond the time authorized-was uncontested. See Pet. App. 16 (noting that petitioner "conceded his deportability"); id. at 43 (same); see also Pet. 5 n.3 (not ing that petitioner "conceded that he was removable on the basis of his visa overstay"). The standard of proof by which the government must establish that fact, there fore, has no relevance in this case.

In any event, in light of the IJ's alternative ruling, petitioner would be removable and ineligible for a waiver of inadmissibility even if it were determined that his conspiracy conviction did not make him ineligible for a waiver. See pp. 17-18, supra. That is an additional reason why certiorari should be denied on this question.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
JENNIFER PAISNER
Attorneys

MARCH 2007

1 The INS's immigration-enforcement functions have since been transferred to United States Immigration and Customs Enforcement in the Department of Homeland Security. See 6 U.S.C. 251 (Supp. IV 2004).

Type: 
Petition Stage Response
Updated October 21, 2014