(Submitted: Monday, September 27, 2010 Decided: Wednesday, October 20, 2010)
Before: WALKER, CABRANES, Circuit Judges, and SCHEINDLIN, District Judge.*fn1
Petition for review of a final order of removal entered by the Board of Immigration Appeals on September 14, 2009. We hold that an alien who receives state rehabilitative treatment for a removable offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II) remains "convicted" of that offense pursuant to the definition of "conviction" in the Immigration and Nationality Act, see INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even if the alien would have been eligible for relief under the Federal First Offender Act had she been prosecuted in federal court. See 18 U.S.C. § 3607. Petition denied.
Maxine Elizabeth Wellington ("petitioner" or "Wellington") petitions for review of a final order of removal entered by the Board of Immigration Appeals ("BIA") on September 14, 2009. Wellington argues that the BIA erred in finding her "convicted" of an offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II)*fn2 and ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1).*fn3 She claims that she has not been "convicted" within the meaning of § 1182(a)(2)(A)(i)(II) because she received a Certificate of Relief from Disabilities ("Certificate of Relief") from the New York court with jurisdiction over her 1995 conviction for drug possession, and because she would have qualified for relief under the Federal First Offender Act had she been prosecuted in federal court. Wellington also argues that the BIA erred in declining to address the question of whether she had accrued 10 years of continuous physical presence for purposes of cancellation of removal under § 1229b(b)(1).
We hold that Wellington was "convicted" of an offense under § 1182(a)(2)(A)(i)(II).
Accordingly, we affirm the BIA's decision dismissing her appeal from a denial of an application for cancellation of removal. Because Wellington is ineligible for cancellation of removal on the basis of her criminal offense, we, like the BIA, need not reach the question of whether she has accrued 10 years of continuous physical presence sufficient to satisfy § 1229b(b)(1)(A).
Wellington is a citizen of Jamaica who entered the United States without inspection on or about January 23, 1981. On June 21, 1986, she married Steven Wellington, a United States citizen, and on October 29, 1989, she was granted temporary resident status under 8 U.S.C. § 1255a. On May 23, 1995, Wellington was convicted in New York state court of criminal possession of a controlled substance in the seventh degree (cocaine), under N.Y. Penal Law § 220.03, and sentenced to 120 days in jail. On May 13, 1996, the Immigration and Naturalization Service ("INS") sent her an order terminating her temporary resident status because of her drug conviction. See 8 U.S.C. § 1255a(b)(2)(B) (providing that the Attorney General shall terminate temporary resident status if an alien commits an act that renders her inadmissible to the United States as an immigrant).
On February 15, 2007, Wellington was arrested and charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i)*fn4 as an alien who was unlawfully present in the United States without being admitted or paroled. Wellington was also charged with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a controlled substance offense (predicated on her 1995 cocaine conviction). See note 1, ante.
On March 11, 2008, Wellington appeared before an immigration judge ("IJ") and conceded that she was removable based on her unlawful presence. She disputed, however, that she was removable based on her criminal conviction, or that her conviction would bar her from cancellation of removal under 8 U.S.C. § 1229b(b)(1). Wellington explained to the IJ that she intended to file a motion in state court to vacate her conviction. The IJ continued the case, and Wellington subsequently filed her application for cancellation of removal based on "exceptional and extremely unusual hardship" to her citizen spouse. Id.
On March 31, 2008, while her removal proceedings were pending, Wellington filed a motion to vacate her controlled substance conviction in New York state court because she had not received effective assistance of counsel during the prior criminal proceedings. In the alternative, Wellington requested vacatur in light of the likely immigration consequences of her conviction and the evidence of her rehabilitation since the offense. On June 27, 2008, the New York state court denied Wellington's motion to vacate the conviction, finding that the record did not demonstrate ineffective assistance of counsel under federal or state constitutional standards. However, the court issued a Certificate of Relief from Disabilities arising out of the conviction, which it believed was warranted for rehabilitative and immigration purposes.
On December 3, 2008, Wellington appeared before the IJ for a final hearing. She argued that she was statutorily eligible for cancellation of removal. She asserted that the Certificate of Relief in state court barred her prior conviction from being used as a basis for removal or as a means of precluding her from cancellation of removal. In support of her argument, Wellington relied, inter alia, on our decision in Rehman v. INS, 544 F.2d 71 (2d Cir. 1976), which held that an alien who received a Certificate of Relief for a state conviction of drug possession was not "convicted" for immigration purposes if full expungement of a federal conviction would have been available for an analogous prosecution in federal court. Wellington also argued that she had satisfied the continuous physical presence requirement for cancellation of removal. See § 1229b(b)(1)(A), note 2, ante. At the December 3, 2008 hearing, the IJ held that Rehman was not controlling law. He noted that, since Rehman was decided, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") had been passed and the INA had been amended to include a statutory definition of "conviction." IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (1996) (codified at 8 U.S.C. § 1101(a)(48)(A)). Pursuant to this new definition of "conviction," the BIA had held in Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), that no effect was to be given to a state rehabilitative action such as an expungement or ...