386 F.3d 1022
Albert ADEFEMI, Petitioner-Appellant,
John ASHCROFT, as Attorney General of U.S., Ms. Rosemary Melville, as the District Director for INS, United States Immigration and Naturalization Service, Respondents-Appellees.
United States Court of Appeals, Eleventh Circuit.
September 28, 2004.
COPYRIGHT MATERIAL OMITTED Michael G. Smith (Court-Appointed), Fort Lauderdale, FL, for Petitioner-Appellant.
Daniel Meron, Regina Byrd, Ernesto H. Molina, Jr., David V. Bernal, U.S. Dept. of Justice/Civ. Div./OIL, Washington, DC, Edward P. Lazarus, William A. Norris, Akin, Gump, Strauss, Hauer & Feld, LLP, Los Angeles, CA, for Respondents-Appellees.
Petition for Review of an Order of the Board of Immigration Appeals.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Albert Adefemi, a citizen of Nigeria, petitioned this court for review of a decision by the Board of Immigration Appeals ("BIA"), challenging its determination that Adefemi could be deported on the basis of a firearms offense. The main issue on appeal is whether the Immigration and Naturalization Service ("INS") presented sufficient evidence for the BIA to conclude that the INS demonstrated Adefemi's conviction of a firearms offense by clear and convincing evidence. Reviewing the BIA's decision under the highly deferential "substantial evidence" standard, we hold that there was sufficient evidence in the record for the BIA to find that the INS met its burden and affirm.
The facts of this case are straight forward. Adefemi entered the United States without inspection in December 1977. He became a permanent resident in 1989. On December 1, 1993, the INS served Adefemi with an order to show cause why he should not be deported, alleging that he was deportable under the Immigration and Nationality Act ("INA") § 241(a)(2)(A)(ii) based on crimes constituting moral turpitude, i.e. two theft convictions. An immigration judge ("IJ") found that Adefemi was deportable and that he was ineligible for relief under INA § 212(c). Adefemi appealed the IJ's decision to the BIA, which determined that Adefemi was ineligible for § 212(c) relief based on the newly enacted Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The BIA, however, remanded the case to the IJ to permit Adefemi to contest his deportability because he had conceded that issue in his appeal to the BIA.
On remand, the INS added another charge of deportability, alleging that Adefemi's theft convictions constituted aggravated felonies under INA § 241(a)(2)(A)(iii) ("first additional charge"). Adefemi, however, denied that he was deportable based on the two theft convictions because those convictions had been expunged under a state first-offender statute. The IJ rejected Adefemi's argument and held that Adefemi was deportable on both the original charge and on the first additional charge. The BIA affirmed the IJ's decision on deportability, but again remanded to determine whether Adefemi could apply for § 212(c) relief based on recent decisions of this court. During a hearing on remand, Adefemi acknowledged several other convictions and arrests, including the circumstances surrounding Georgia Citation Number 0129, under which Adefemi received a citation for a weapons violation. As a result of this testimony, the INS added a third charge of deportability under INA § 241(a)(2)(c) ("second additional charge").
Although Adefemi admitted that he had been convicted of carrying a concealed weapon and that he had a gun in his car at the time of arrest, he challenged whether the government established that he had been convicted of carrying a concealed firearm by clear and convincing evidence. In order to satisfy its burden, the INS introduced into evidence a certified record of conviction from the City Court of Atlanta. Adefemi contended that the document was ambiguous because it failed to make clear, among other things, his plea, the disposition of the charge, and the type of weapon involved. In essence, Adefemi argued that the citation did not establish his conviction by clear and convincing evidence. The IJ rejected his arguments, finding that the document was clear and convincing evidence of a firearms conviction and, therefore, held that Adefemi was deportable based on that offense. In addition, the IJ ruled that Adefemi was ineligible for § 212(c) relief because such relief is not available for a firearms conviction. Adefemi appealed the IJ's decision, arguing that the evidence was insufficient. The BIA found that the City Court of Atlanta document was clear and convincing evidence of a firearms offense and affirmed the IJ's decision. Adefemi appealed the BIA's decision to this court.
II. Standard of Review
This court reviews administrative fact findings under the highly deferential substantial evidence test. Farquharson v. United States Attorney Gen., 246 F.3d 1317, 1320 (11th Cir.2001); Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir. 1997). Under the substantial evidence test, we view the record evidence in the light most favorable to the agency's decision and draw all reasonable inferences in favor of that decision.
We "must affirm the BIA's decision if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quoting Lorisme, 129 F.3d at 1444-45). Thus, we do not engage in a de novo review of factual findings by the BIA. Similarly, we cannot find, or consider, facts not raised in the administrative forum, nor can we "`reweigh the evidence from scratch.'" Mazariegos v. United States Attorney Gen., 241 F.3d 1320, 1323 (11th Cir.2001) (quoting Lorisme, 129 F.3d at 1444-45); see also Najjar, 257 F.3d at 1278 ("Courts of appeal sit as reviewing bodies to engage in highly deferential review of BIA and IJ determinations.... Commensurate with this role, we cannot engage in fact-finding on appeal, nor may we weigh evidence that was not previously considered below."). In sum, findings of fact made by administrative agencies, such as the BIA, may be reversed by this court only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings. Farquharson, 246 F.3d at 1320 ("To reverse a factual finding by the BIA, this Court must find not only that the evidence supports a contrary conclusion, but that it compels one."); see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. . . ."); Kenyeres v. Ashcroft, 538 U.S. 1301, 123 S.Ct. 1386, 1388, 155 L.Ed.2d 301 (2003) ("A reviewing court must uphold an administrative determination in an immigration case unless the evidence compels a conclusion to the contrary.").
We apply the substantial evidence test even when, as in this case, the government is required to prove its case by clear and convincing evidence in the administrative forum. In other words, the fact that the INS was required to prove Adefemi's deportability by clear and convincing evidence in the BIA does not make our review of the BIA's decision more stringent. PAGE CONTAINED FOOTNOTES Under the substantial evidence standard, we cannot look at the evidence presented to the BIA to determine if interpretations of the evidence other than that made by the BIA are possible. Rather, we review the evidence that was presented to determine if the findings made by the BIA were unreasonable. See Najjar, 257 F.3d at 1283-84, Mazariegos, 241 F.3d at 1324. To that end, our inquiry is highly deferential and we consider only "whether there is substantial evidence for the findings made by the BIA, not whether there is substantial evidence for some other finding that could have been, but was not, made." Mazariegos, 241 F.3d at 1324. That is, even if the evidence could support multiple conclusions, we must affirm the agency's decision unless there is no reasonable basis for that decision. See United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.2004) (per curiam).
The BIA determined that the INS presented clear and convincing evidence that Adefemi was deportable as a result of a firearms conviction in 1991. Our task on appeal, therefore, is to decide if there is substantial evidence in the record to support the BIA's determination.
The BIA and the IJ relied primarily, if not exclusively, on the City Court of Atlanta document to determine that Adefemi was convicted of a firearms offense. The front of that document contains charges for carrying a concealed weapon in violation of Georgia Code Section 16-11-126. That section, in turn, prohibits a person from carrying several listed concealed weapons, including both firearms and non-firearms. Ga.Code Ann. § 16-11-126. As such, the INS was required to prove that the crime for which Adefemi was convicted was, in fact, a firearms offense and not some other offense. E.g., Pichardo-Sufren, 21 I. & N. Dec. 330, 1996 WL 230227 (B.I.A.1996). The document contains only one charge — that Adefemi violated Ga. Code Ann. § 16-11-126. In the "remarks" section immediately following the charge, the arresting officer wrote "driver had a 22 cal RG10 in console between seats." No other weapon is listed on the document. Adefemi has not contended, and could not seriously contend, that a .22 caliber RG10 is not a firearm. Similarly, Adefemi has not contended that carrying such a weapon in violation of § 16-11-126 is not a firearms offense under 8 U.S.C. § 1227(a)(2)(C). Thus, it was not unreasonable for the BIA to find that the front side of the City Court of Atlanta document established that Adefemi was charged with a firearms offense.
Next, we address whether it was unreasonable for the BIA to find that the City Court of Atlanta document also established that Adefemi was convicted of a firearms offense. The reverse side contains a section entitled "appearance, plea of guilty and waiver." Adefemi signed that section immediately under a paragraph that concludes "I ... do freely and voluntarily enter my plea of Guilty." In addition, in a section entitled "upon trial, the defendant [unreadable]," the words "[i]t is considered, ordered and adjudged that the defendant pay a fine of 330.00 Dollars and (in default of such payment) be confined for a term of [unreadable, probably 12] months" appear. The appropriate official signed this section of the document. Finally, the word "probation" is stamped across the document in the section entitled "disposition and sentence." From all of this evidence, it is not unreasonable for a factfinder to conclude that Adefemi pleaded guilty to the only charge listed on the document — carrying a concealed weapon described as a firearm — and that his punishment for this crime was a fine of $330.00 and a probated sentence.
Admittedly, the document contains several ambiguities. For example, at the top of the reverse side, next to the words "on arraignment, the defendant pleads," a "not guilty" stamp appears, implying that Adefemi at first may have pleaded not guilty to the charge. In addition, several of the blanks are not completed. We must, however, view the evidence in the light most favorable to the BIA's finding that the INS met its burden and, when so viewed, the ambiguities do not compel us to conclude that the BIA's decision was erroneous. In the light most favorable to the BIA's decision, the City Court of Atlanta document suggests that Adefemi initially may have pleaded not guilty, but that he later changed his plea to guilty. He was ordered to pay a fine and received a probated sentence, results that would only be appropriate for a conviction. We cannot say that these inferences are unreasonable. Therefore, we conclude that the City Court of Atlanta document, by itself, provides sufficient evidence to affirm the BIA's finding that the INS proved Adefemi's deportability based on a firearms conviction by clear and convincing evidence.
Because we have held that the BIA's finding that the INS presented clear and convincing evidence that Adefemi committed a firearms offense was not unreasonable, we must also review the BIA's determination that he is deportable and ineligible for discretionary relief under INA § 212(c). Adefemi was convicted of a firearms offense and, thus, he is deportable. 8 U.S.C. § 1227(a)(2)(C) (transferred from § 1251 in 1996) ("Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying . . . any weapon . . . which is a firearm . . . in violation of any law is deportable." (emphasis added)). The BIA determined that, because Adefemi committed a firearms offense, he is ineligible for § 212(c) relief. Adefemi appeals and argues that he should be eligible to receive § 212(c) relief. An alien convicted of a firearms violation, however, is not eligible for such relief. Cato v. INS, 84 F.3d 597, 602 (2d Cir.1996); Rodriguez-Padron v. INS, 13 F.3d 1455, 1460-61 (11th Cir.1994); Esposito, 21 I. & N. Dec. 1, 10, 1995 WL 147030 (B.I.A.1995).
For the above reasons, we hold that the City Court of Atlanta document alone provided sufficient evidence for the BIA to find that the INS presented clear and convincing evidence that Adefemi was convicted of a firearms offense. The front of the document contained only one charge, carrying a concealed weapon described as a .22 caliber RG10, and the BIA interpreted the reverse side of the document to be a record of conviction showing that Adefemi pleaded guilty to a firearms offense, was ordered to pay a fine, and received a probated sentence. Although there are ambiguities in the document, these ambiguities are not sufficient to compel us to conclude that the BIA's finding is unreasonable. We therefore affirm the BIA's finding that Adefemi committed a deportable offense. In addition, we affirm the BIA's conclusion that because he committed a firearms offense, Adefemi is not eligible for § 212(c) relief.
BARKETT, Circuit Judge, dissenting:
I respectfully dissent from the majority's conclusion that our review of a BIA decision for substantial evidence remains exactly the same when the government had the burden below to show a conviction by clear and convincing evidence. Although our review must remain highly deferential, we must apply that deferential review to the specific decision taken below — in this case, that the government demonstrated a conviction by clear and convincing evidence.
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).
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). While it is true that this Court will not reverse a factual finding of the Board unless the evidence compels a contrary determination, the question in this case is whether the record compels us to conclude that the INS failed to meet its burden. Our review remains highly deferential, but the particular finding we are reviewing requires more from the record than an ordinary finding of fact with a lesser burden. We must see at least some evidence that might allow a reasonable fact-finder to conclude that the government met its burden of showing a conviction by clear and convincing evidence.
As the majority implicitly recognizes, several other circuits have concluded that the substantial evidence does differ when considering whether the government has met this heightened burden. In Sandoval v. INS, 240 F.3d 577 (7th Cir.2001), the Seventh Circuit pointed to the ambiguous effect of a subsequent change in the petitioner's sentence and concluded that "the INS did not prove by clear and convincing evidence that Sandoval was convicted of possession of more than thirty grams of marijuana." Id. at 583. Similarly, in Cortez-Acosta v. INS, 234 F.3d 476 (9th Cir. 2000), the Ninth Circuit reversed an order of deportation because the petitioner's admission of culpability in alien smuggling was too ambiguous to meet the "clear and convincing" burden. In discussing the standards of review, the court noted that "although we review for reasonable, substantial, and probative evidence in the record as a whole, our review examines whether the INS has successfully carried this heavy burden of clear, unequivocal and convincing evidence." Id. at 481 (citations omitted). See also Murphy v. INS, 54 F.3d 605, 612 (9th Cir.1995) ("Because the BIA gave significant weight to inherently unreliable evidence and shifted the burden of persuasion to Murphy, it inappropriately concluded that the government had met its burden of proving alienage by clear and convincing evidence. Because the BIA's determination is not based on substantial evidence in the record as a whole, we hereby grant Murphy's petition.. . .").
The majority attempts to distinguish each of these cases on factual grounds. Granted, Adefemi does not present exact factual parallels to any of these cases. Nonetheless, in each case the reviewing court considered whether the government met its burden to show a conviction by clear and convincing evidence. Even though there was some (questionable or ambiguous) evidence in the record that might have supported a conviction, the court noted that the evidence did not meet the heightened burden placed upon the government. The same principle should apply in this case.