Juvenile Convictions for Adjustment of Status:  Decision. Wallace v. Gonzales 463 F.3d 135 Federal  Judge decision

Juvenile Convictions for Adjustment of Status:  Decision. Wallace v. Gonzales 463 F.3d 135 Federal  Judge decision

United States Court of Appeals, Second Circuit.
Micheal WALLACE, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent.
No. 05-2341.
April 3, 2005.

On Petition for Review from a Final Administrative Order of the Board of Immigration Appeals

Brief for Petitioner

Earl Ian Laidlow Esquire, Attorney for Petitioner, 225 Broadway, Suite 1410, New York, New York, (212) 233-4600.
TABLE OF CONTENTS

Table of Authorities … 3
Statement of Jurisdiction … 5
Statement of the Issue Presented for Review … 5
Statement of the Case … 6
Statement of Facts … 6, 7, 8, 9
Summary of the Argument … 10, 11
Argument … 11
Conclusion … 15
Certificate of Service … 16
Certificate of Compliance … 16

POINT I. THE BOARD OF IMMIGRATION APPEALS ERRED AND VIOLATED DUE PROCESS IN HOLDING THAT THE PETITIONER’S OFFENSE, THAT RESULTED IN A YOUTHFUL OFFENDER FINDING UNDER NEW YORK PENAL LAW ARTICLE 720 ARE FACTORS TO BE CONSIDERED IN ASSESSING WHETHER TO GRANT HIM ADJUSTMENT OF STATUS PURSUANT TO SECTION 245 OF THE IMMIGRATION & NATIONALITY ACT

A. Standard of Review

B. The Board of Immigration Appeals violated law and due process by holding that conduct arising from a Youthful Offender Adjudication under NY Penal law, Article 720 are factors to be considered in assessing whether to grant adjustment of status pursuant to Sec 245 of the Immigration & Nationality Act.

POINT II. THE BOARD OF IMMIGRATION APPEALS ERRED AND VIOLATED THEIR OWN REGULATIONS IN 8 C.F.R §1003.1(D)(3) BY VACATING THE IMMIGRATION JUDGE’S DECISION TO GRANT ADJUSTMENT OF STATUS BECAUSE THE IMMIGRATION JUDGE’S DECISION WAS NOT CLEARLY ERRONEOUS

TABLE OF AUTHORITIES

Cases

Dia v. Ashcroft, 353 F.3d 228, 248-61 (3d Cir 2003) … 10
Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir 2003) 11
Diallo v. INS, 232 F.3d 287(2d Cir 2000) 11
Sui v. INS, 250 F.3d 105, 112-13 (2d Cir 2001) 12
People v. Drayton, 39 N.Y.2d 580, (1976, NY Court of Appeals) … 9

Statutes
I.N.A§245, 8 USC§1255 … 2, 6, 15
I.N.A §242, 8 U.S C. §1252(a) … 5
I.N.A §237(a)(1)(B), 8 U.S.C §1227(a)()(B) … 6
N.A. §242(a)(2)(B)(I), 8 U.S.C §1252(a)(2)(B)(I) … 10
New York Criminal Procedural Law, §720 35(1) … 11
New York Criminal Procedural Law, §720 10(2) … 11
New York Criminal Procedural Law, §720 20(3) … 12

Regulations
8 C.F.R. §1003.1(d)(3) … 5, 10, 13
67 Fed. Reg 54875 at 54889 … 13
8 C.FR §1003.1(b)(3)(i) … 10, 14

STATEMENT OF JURISDICTION

This is a Petition to Review the final order of removal entered against Michael Wal-lace (hereinafter referred to occasionally as “Petitioner”) by the Board of Immigration Appeals on April 15, 2005. (A.R 2 and 3)^[FN1]. The instant appeal is taken pursuant to for-mer Section 242 of the Immigration and Nationality Act (“I.N.A”), 8 U.S C. §1252 As this case is a review of a final order of removal, jurisdiction is therefore proper in this case pursuant to I.N.A §242

FN1. The abbreviation “A R” followed by a number refers to a page of the Certified Administrative Record on file with this court

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW

1. Whether the Board of Immigration Appeals erred and violated due process in holding that the Petitioner’s offense, that resulted in a Youthful Offender Adjudication under New York Penal Law Article 720, are factors to be considered in assessing whether he is eligible for adjustment of status pursuant to Sec 245 of the Immigration & Nationality Act?
2. Whether the Board of Immigration Appeals erred and violated their own regulations in 8 C.F.R § 1003 1(D)(3) by vacating the Immigration Judge’s decision to grant Petitioner’s adjustment of status application without clear and convincing evidence that the Immigration Judge’s decision was ‘clearly erroneous’?

STATEMENT OF THE CASE

The legacy Immigration and Naturalization Service (“legacy INS”) issued a Notice to Appear (Form 1-862) to Michael Wallace, charging him with removability under section 237(a)(l)(B) of the Immigration and Nationality Act, 8 U.S.C §1227(a)(l)(B) (A R. 364-66). Petitioner was charged with having remained in the United States beyond the period for which he was authorized as a nonimmigrant Petitioner conceded removability and sought relief pursuant to I.N.A §245, 8 U.S C. § 1255.

After a hearing on the merits, the Immigration Judge Joe Miller granted Petitioner, Michael Wallace’s application for adjustment of status pursuant to Sec 245 of the Immigration & Nationality Act on September 8,2004 (A.R 50-54) Respondent filed a Notice of Appeal with the Board of Immigration Appeals (“BIA”) After submission of briefs by both parties, the BIA vacated the Immigration Judge’s decision granting adjustment of status, and ordered the Petitioner removed to Trinidad. (A R. 1-2) Petitioner filed a Petition for Review with this court on May 12, 2005, and the instant petition for review follows

STATEMENT OF FACTS

Petitioner, Michael Wallace, is a native and citizen of Trinidad, who entered the United States as a visitor on August 2, 2000. His step father, Keith Cornelius filed an immediate relative petition on his behalf His mother, Donna Cornelius. a lawful resident, is married to Keith Cornelius and she is also a member of the U.S military presently stationed abroad His mother is also a correctional officer in Phoenix, AZ when she is not on active duty in the military. The Petitioner has does not have a relationship with his father who lives in Trinidad, W.I. The Petitioner came to the United States at the age of sixteen, and attended high school in Brooklyn, NY. Petitioner, was placed in removal proceedings after serving time in an upstate, NY facility for NY Penal law offenses resulting in a Youthful Offender Adjudication under New York Penal Law. (A.R 232)

The Petitioner testified concerning the circumstances surrounding his Youthful Offender Adjudication because the Immigration Judge ruled that he felt that the circumstances of a Youthful Offender adjudication could be used to deny Petitioner adjustment of status (See A.R 65-66) Nevertheless, the Petitioner candidly testified in U.S Immigration Court that he and two friends committed robbery in a Brooklyn, NY subway as a result of peer pressure. The Petitioner admitted in court that he struck the victim with his hands, and his friends possessed a knife and razor. The Petitioner admitted to another criminal law violation involving not paying a subway fare that did not bar him from applying for adjustment of status

Petitioner, Michael Wallace enrolled in a Legit Youth Entrepreneur program on March 9, 2001, a program that taught business skills and entrepreneurship (A R 276, 277, 278, and 279) He reportedly made excellent progress Petitioner also took G E.D classes and had excellent inmate progress reports. Petitioner testified that while incarcerated he learned how to repair and paint homes While in jail, he also performed custodial maintenance duties at the prison facility (A R 128-144) Petitioner, Michael Wallace served two years and 8 months in jail, and was released from the Department of Homeland Security’s physical custody on September 8, 2004 after Immigration Judge Joe Miller granted his adjustment of status application. Mr. Wallace stated that his ambitions included joining the military like his mother, and going to college and taking business and medicine classes. (A R 128-144)

Petitioner’s family members, specifically his mother, Donna Cornelius, and his uncle, DeAngelo Alexander, traveled from Phoenix, AZ to upstate New York to support the Petitioner and give testimony as rehabilitation and character witnesses. Petitioner’s mother, Donna Cornelius testified that Petitioner has matured since his arrest and incarceration and expressed remorse for his actions on many occasions- (A R 162-170) Additionally, DeAngelo Alexander, Petitioner’s uncle testified that the Petitioner advises his children, one who was 15 years old at the time about the perils of hanging out with friends and not doing well in school, and listening to his parents Specifically, Mr Alexander testified that the Petitioner accepted Jesus Christ, he matured, changed his attitude, and showed great remorse for his past actions (A.R 177-182) Mr Alexander also testified that the Petitioner told him that he realizes what he did was wrong and it brought great shame to his family. (A.R 179, lines 15-25) Mr Alexander also testified that he and his family would provide the Petitioner with the support system so he would ‘walk the straight path’ and continue his education After Mr Alexander testified, the Immigration Judge granted the Petitioner’ s request for adjustment of status and the Dept of Homeland Security appealed the judge’s decision On April 15, 2005, the Board of Immigration Appeals vacated the Immigration Judge’s decision and ordered Mr Wallace removed to Trinidad.

SUMMARY OF ARGUMENT

Petitioner was met the statutory requirements for adjustment of status and the Board of Immigration Appeals violated the spirit and purpose of the Youthful Offender provisions of Article 720.35(1) of the New York Penal law Specifically, the Board of Immigration Appeals unlawfully considered the Petitioner’s conduct, which resulted in a Youthful Offender finding, as a legal basis for denying his application for adjustment of status, despite the New York legislature’ desire not to stigmatize youths between the ages of 16 and 19 with criminal records and other negative consequences from conduct which may not have been serious deeds of hardened criminals People v. Drayton, 39 NY2d 580, 1976, NY Court of Appeals)

Second, the Board of Immigration Appeals violated the Code of Federal Regulations by vacating the Immigration Judge’s decision to grant the Petitioner’ adjustment of status, without clear and convincing evidence that the Immigration Judge’s decision was ‘clearly erroneous’ pursuant to 8 C F R §1003 1(d)(3) One of the Board members, Roger A Pauley, actually dissented, without opinion concerning this matter The record is unclear as to whether he dissent was related to the Board’s decision to vacate the Immigration Judge’s decision, or because the decision was vacated without evidence that the Immigration Judge’s findings were ‘clear and erroneous’. Hence, the Board, erred in denying the Petitioner’s adjustment of status application and the Petition For Review should be granted. At the very least, this case should be remanded for further findings consistent with law and due process.

ARGUMENT

I. THE BOARD OF IMMIGRATION APPEAL’S FINDING THAT THE PETITIONER CONDUCT ARISING FROM HIS YOUTHFUL OFFENDER ADJUDICATION UNDER NEW YORK PENAL LAW ARE FACTORS TO BE CONSIDERED IN ASSESSING WHETHER TO GRANT ADJUSTMENT OF STATUS IS CONTRARY TO LAW AND DUE PROCESS

A. Standard of Review

Judicial review of denials of adjustment of status is restricted under INA § 242(a)(2)(B)(I). Review is substantially narrowed and administrative findings of fact are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary” INA § 242(b)(4)(B), Dia v. Ashcroft, 353 F.3d 228,248-61 (3d Cir 2003) (en banc) Review of non-discretionary aspects of the exercise of discretion are subject to review, and the denial will be reversed if “contrary to law”. Hernandez v. Ashcroft, 345 F.3d 824 (9^th Circuit 2003) If the issue on appeal involves the proper application of legal principles to the facts and circumstances of the individual case at hand, the review has been de novo. Diallo v. INS, 232 F.3d 287 Also deference to agency interpretation is inappropriate where the agency is interpreting state or federal criminal laws. Sui v. INS, 250 F.3d 105, 112-13 (2d Cir. 2001)

B. The Board erred in holding that the Petitioner’ previous conduct, which resulted in a Youthful Offender Adjudication under New York Penal Law, were factors to be considered whether the Petitioner is deserving of adjustment of status pursuant to Sec. 245 of the Immigration & Nationality Act.

Sec. 720.35(1) of the New York Criminal Procedural Law specifically states that a youthful offender adjudication is not a judgement of conviction for a crime or any other offense. Under NY Penal law, the court first determines whether a youth (a person charged with a crime alleged to have been committed when he was at least 16 years old and less than 19years old) is an “eligible youth” that is a youth who has not been convicted of certain violent felonies, who has not been previously been convicted of and sentenced for a felony, and who has not previously been adjudicated a youthful offender following a conviction for a felony See N.Y.Crim. Proc Law § 720 10(2) (McKinney 2000) If the eligible youth is determined to be a youthful offender, however the court immediately vacates the conviction. N.Y.Crim. Proc Law Art 720 20(3) The youthful offender provisions of the NY Criminal Procedural law emanate from the legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been serious deeds of hardened criminals People v. Drayton, 39 N.Y.2d 580, 1976, NY Court of Appeals)

Here the spirit and the purpose of the New York Youthful Offender law is defeated if the Board is permitted to use a confidential Youthful offender adjudication when adjudicating adjustment of status applications under U.S. Immigration law. The New York legislature’s desire to not stigmatize youths between the ages of 16 and 19 with criminal records and other negative consequences from conduct which may not have been the serious deeds of hardened criminals. In the Board decision (A.R 50-53) the Board states that “In this case, we agree with the DHS that based on the respondent’s criminal history, which indicates a propensity to violate the law, he is not desirable as an alien resident in the United States and that, not withstanding the obvious familial support which he enjoys here, this factor cannot outweigh the negative factor of his criminal history. Moreover, we also agree with the DHS that the Immigration Judge erred in finding adequate rehabilitation which would outweigh the negative criminal history”. Here, the Board unlawful gives improper weight and consideration to the Petitioner, Michael Wallace’s “criminal history” when he was in fact adjudicated as a ‘Youthful Offender’ under NY Penal law, which is not considered a criminal finding or procedure. Furthermore, the Petitioner committed his penal law violations when he was 17 years old, and it would be unduly harsh, and contrary of the intent, spirit, and purpose of a Youthful Offender laws and the Youthful Offender findings by the NY criminal courts. Hence, the Board of Immigration Appeal’s use of the Petitioner, Michael Wallace’s Youthful Offender adjudication as a basis for denying him adjustment of status, is prohibited, contrary to law, and a violation of due process Additionally, the Petition for Review should be granted on these grounds, and the Board of Immigration Appeals decision should be vacated

II. THE BOARD OF IMMIGRATION APPEALS ERRED TN AFFIRMING THE DECISION OF THE IMMIGRATION JUDGE WHEN THE RESULTS WERE INCORRECT.

8 C.F.R 1003.1(d)(3)(i) states in pertinent part ‘that the Board will not engage in de novo review of findings of fact determined by an immigration judge. An Immigration Judge’s findings of fact is clearly erroneous “when, although there is evidence to support it, the reviewing Board member or panel is left with the definite and firm conviction that a mistake has been committed “67 Fed Reg. 54875 at 54889. Here, the Immigration Judge ruled in the Petitioner’s favor and granted his application for adjustment of status pursuant to Sec. 245 of the Immigration & Nationality Act, despite his background as a Youthful Offender under New York Penal law. See (A.R 50-53)

In the Board decision, (A.R 50-53) the Board states that that “In this case, we agree with the DHS that based on the respondent’s criminal history, which indicates a propensity to violate the law, he is not desirable as an alien resident in the United States and that, not withstanding the obvious familial support which he enjoys here, this factor cannot outweigh the negative factor of his criminal history. Moreover, we also agree with the DHS that the Immigration Judge erred in finding adequate evidence of rehabilitation which would outweigh the negative criminal history”. Here, the Board does not comply with the regulations which provide for the finality of the Immigration Judge’s findings of fact unless it is “clearly erroneous” and the panel is left with the definite and firm conviction that a mistake has been committed Actually, one of the Board member, Roger A Pauley, dissented without opinion (A.R 2) At the very least, the concurring Board’s member’s decision is inadequate because it is silent as to whether or not there was a definite and firm conviction by the Board that the Immigration Judge’s decision was clearly erroneous. Hence it was error and a violation of 8 C.F.R § 1003.1 (b)(3)(i) for the Board of Immigration Appeals to disturb the decision of the Immigration Judge unless there was a clear and erroneous ruling Therefore the Petition for Review must be granted on these grounds, and the Board of Immigration Appeal’s decision must be vacated, or remanded for further findings consistent with the applicable law and regulations.

CONCLUSION

Based upon the foregoing facts and law, Petitioner, Michael Wallace respectfully requests that this court reverse the decision of the Board of Immigration Appeals and the Immigration Judge and grant his application for adjustment of status pursuant to Immigration & Nationality Act §245 and 8 U.S.C §1255.

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