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Sutherland v. Holder

United States Court of Appeals, Second Circuit

October 8, 2014

ARLENE ANITA SUTHERLAND, Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent

Argued December 10, 2013

Petitioner Arlene Anita Sutherland (" Sutherland" ) seeks review of an October 19, 2012 decision of the Board of Immigration Appeals (the " BIA" ) affirming the August 31, 2011 decision of an Immigration Judge ordering her removed from the United States. The BIA found that Sutherland's 1997 Arizona state conviction for attempted possession for sale of four or more pounds of marijuana constituted a controlled substance offense and an aggravated felony that rendered her removable, despite the state court's intervening vacatur of that conviction. It reasoned that Sutherland's vacated conviction remained valid for purposes of establishing her removability, because she sought and obtained vacatur under Arizona Revised Statutes § 13-907 solely for rehabilitative reasons and to avoid the adverse immigration consequences of her conviction. Because Sutherland's conviction stands for federal immigration purposes, the agency's decision was supported by the record and we lack jurisdiction over her petition for review.

JOSHUA BARDAVID, New York, N.Y., for Petitioner.

VIRGINIA LUM, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.

OPINION

Per Curiam:

Petitioner Arlene Anita Sutherland (" Sutherland" ), a native and citizen of Jamaica, seeks review of an October 19, 2012 decision of the Board of Immigration Appeals (the " BIA" ) affirming the August 31, 2011 decision of an Immigration Judge (the " IJ" ). The BIA found her removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a controlled substance offense and § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, based on her 1997 Arizona state conviction for attempted possession for

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sale of four or more pounds of marijuana. The issue before us is whether Sutherland's conviction remains valid for federal immigration purposes even after the state court vacated it under Arizona Revised Statutes (" ARS" ) § 13-907. We find that the record supports the agency's determination that Sutherland's conviction remains a removable offense because she sought and obtained vacatur solely for rehabilitative reasons and to avoid adverse immigration consequences. Therefore, Sutherland's conviction remains valid for federal immigration purposes, and we lack jurisdiction over her petition for review. See 8 U.S.C. § 1252(a)(2)(C).

BACKGROUND

In 1997, Sutherland, then a lawful permanent resident of the United States, pleaded guilty to attempted possession for sale of four or more pounds of marijuana in violation of Arizona law. She was placed on probation for three years and ordered to complete 360 hours of community service. She suffered no immediate immigration consequences as a result of her conviction.

In 2006, Sutherland applied for naturalization. The U.S. Department of Homeland Security denied her application on account of her 1997 conviction and charged her as subject to removal under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a violation of a law relating to a controlled substance, " other than a single offense involving possession for one's own use of 30 grams or less of marijuana," and under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Sutherland admitted to her conviction before the IJ, but declined to concede that she was removable as charged.

While her removal proceeding was pending, Sutherland applied in Arizona Superior Court to vacate her conviction pursuant to ARS § 13-907. In her application, Sutherland stated that since her conviction, she had fulfilled the conditions of her probation, earned a Bachelor of Arts degree in business, opened her own retail store, and become an active member of her community in Rochester, New York. She asserted that her conviction marred her otherwise clean record and caused unwarranted adverse immigration consequences. In 2011, the Arizona Superior Court granted her application without reservation.

Sutherland subsequently moved the immigration court to terminate her removal proceedings on the ground that her conviction had been vacated. The IJ declined to do so because Sutherland had obtained vacatur in order to avoid adverse immigration consequences, not to cure a defect in her underlying criminal proceeding. The IJ ordered Sutherland removed to Jamaica, finding that Sutherland's admission of the state conviction constituted a concession of her removability, and alternatively, determining that her conviction constituted an aggravated felony drug trafficking offense rendering her removable and ineligible for several forms of relief, including cancellation of removal and voluntary ...


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