Saleh v. Gonzales, No. 05-5909 (2d Cir. 2007)

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The court issued a subsequent related opinion or order on August 3, 2007.

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05-5909 Saleh v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2006 Argued: April 30, 2007 Decided: July 17, 2007) Docket No. 05-5909-ag --------------------------------------------------X YASSER NASSER SALEH, Petitioner, - against ALBERTO GONZALES, Attorney General of the United States, Respondent. --------------------------------------------------X Before: FEINBERG, SOTOMAYOR, and HALL, Circuit Judges. Petitioner seeks review of a decision of the Board of Immigration Appeals affirming decisions of the Immigration Judge denying his motion to terminate removal proceedings, finding him removable, and denying his application for relief. Petition for review denied. ERIC W. SCHULTZ, Sacks, Kolken & Schultz, Buffalo, New York, for Petitioner. SHANE CARGO, Assistant United States Attorney, (Michael J. Garcia, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, on the brief), United States Attorney s Office for the Southern District of New York, for Respondent. 1 2 FEINBERG, Circuit Judge: Yasser Nasser Saleh, a lawful permanent resident of the 3 United States, was charged as removable under section 4 237(a)(2)(A)(i) of the Immigration and Nationality Act ( INA ), 5 8 U.S.C. § 1227(a)(2)(A)(i). 6 conviction in state court of receiving stolen property, which is 7 a removable offense, i.e., a crime involving moral turpitude 8 ( CIMT ) for which a sentence of one year or longer could have 9 been imposed. The basis of the charge was his In an effort to escape the adverse immigration 10 consequences of that conviction, Saleh thereafter obtained an 11 amendment of the judgment so that he instead stood convicted of 12 petty theft, which is not a removable offense. 13 In this petition, Saleh seeks review of the decision of the 14 Board of Immigration Appeals ( BIA ) affirming decisions of the 15 Immigration Judge ( IJ ) (A) rejecting Saleh s argument that he 16 no longer stands convicted of a removable offense and therefore 17 denying his motion to terminate his removal proceedings and (B) 18 finding Saleh removable as charged and denying his application 19 for relief from removal. 20 Oct. 4, 2005), aff g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22, 21 2004). In re Saleh, No. A41 982 414 (B.I.A. 22 In reviewing these decisions, the principal question before 23 us is whether the BIA erred in concluding that Saleh remains 24 convicted of a removable offense -2- for federal immigration 1 purposes even though the state court amended its judgment of 2 conviction to effectively expunge his conviction of a removable 3 offense under state law. 4 hold that the BIA did not err because the amendment was secured 5 solely to aid Saleh in avoiding immigration consequences and was 6 not based on any procedural or substantive defect in the original 7 conviction. For the reasons set forth below, we We therefore deny the petition. 8 I. BACKGROUND 9 Saleh, a native and citizen of Yemen, was admitted to the 10 United States as a lawful permanent resident in 1990. 11 Saleh was convicted in California state court, 12 plea 13 violation of section 496(a) of the California Penal Code.1 14 offense carries a maximum sentence of one-year imprisonment, see 15 Cal. Pen. Code § 496(a), although the court imposed a lower of nolo contendere, of receiving 1 stolen In 1993, following his property in The The statute provides, in pertinent part, that [e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. Cal. Pen. Code § 496(a). Saleh was convicted under section 496.1 of the California Penal Code. That provision has since been recodified as section 496(a). Throughout, this opinion references the provision at its current location in section 496(a). -3- 1 sentence.2 In July 2001, the Immigration 2 Service ( INS ) commenced removal proceedings,3 charging that 3 Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his 4 1993 crime qualifies as a CIMT, committed within 10 years after 5 the date of admission, for which a sentence of one year or longer 6 could have been imposed. and Naturalization 7 Subsequently, for the announced purpose of escaping adverse 8 immigration consequences, Saleh moved in California state court 9 for an amendment of the judgment convicting him of receiving 10 stolen property, effective nunc pro tunc, so that he would 11 instead stand convicted of petty theft in violation of section 12 488 of the California Penal Code. 13 for which a sentence of one year or longer could have been 14 imposed, it is not a removable offense. 15 accompanying Saleh s motion, his counsel expressly referred to 16 the immigration consequences of Saleh s original conviction, Because this is not a crime In a declaration 2 This was neither Saleh s first nor last brush with the law. He had already been convicted in 1992 of unlawfully discharging a firearm and driving while intoxicated, and was thereafter convicted in 1997 of criminal mischief, in 1998 of driving while intoxicated, and in 2000 of driving while intoxicated. 3 On March 1, 2003, the INS was reconstituted into two agencies, the Bureau of Immigration and Customs Enforcement and the U.S. Citizenship and Immigration Services, both within the Department of Homeland Security. See Jian Hui Shao v. Bd. of Immigration Appeals, 465 F.3d 497, 499 n.3 (2d Cir. 2006) Because the proceedings in this case began before that date, we will continue to refer to the agency as the INS. -4- 1 stating that the alternative disposition of petty theft, which 2 carries a six month maximum sentence would not have the adverse 3 immigration consequences. 4 presented to that court identified any substantive or procedural 5 defects in Saleh s conviction. 6 motion. Moreover, no evidence or argument The California court granted the 7 Saleh thereafter asked the IJ to terminate the agency s 8 removal proceedings, arguing that petty theft is not a removable 9 offense. The IJ denied the motion, reasoning that, despite the 10 California court s amendment to the judgment of conviction, Saleh 11 remained convicted of receiving stolen property, a removable 12 offense for federal immigration purposes, because the amendment 13 was not based on any showing of innocence or any suggestion that 14 the conviction had been improperly obtained. 15 found that the conviction was amended solely for the purpose of 16 circumventing the immigration laws of the United States. 4 Instead, the IJ 17 After the IJ denied Saleh s motion to terminate his removal 18 proceedings and the BIA declined to entertain his interlocutory 4 Although the Government bears the burden of proving, by clear and convincing evidence, that Saleh is removable, see 8 U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465 F.3d 263, 268-69 (6th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. 2005), Saleh did not dispute before the IJ or the BIA or in his brief in this appeal that the California court amended the judgment of conviction to help him avoid immigration hardships, so we deem any argument to the contrary waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005). -5- 1 appeal of that decision, Saleh contested removability and sought 2 relief 3 prerequisite to obtaining a waiver of deportation under former 4 section 5 abandoned his application for 212(c) relief and instead filed a 6 motion to substitute an application for cancellation of removal.5 7 The IJ found Saleh removable and denied his application for 8 cancellation of removal as untimely. 9 from removal. 212(c) of He the initially INA. filed a Subsequently, Form I-191, however, a Saleh The BIA adopted and affirmed the IJ s decision and dismissed 10 the appeal. 11 Pickering, 23 I. & N. Dec. 621 (BIA 2003), 12 the IJ that Saleh remained convicted of a removable offense for 13 federal 14 judgment of conviction was not based on any substantive or 15 procedural defect in the underlying criminal proceedings, and 16 Saleh was therefore removable. Saleh filed a timely petition for 17 review. 18 Relying immigration on its purposes prior because decision in Matter of the Board agreed with the amendment of the II. ANALYSIS 19 In his petition, Saleh argues that the BIA erred in finding 20 him removable and in denying his application for cancellation of 21 removal. In support, he argues principally that (A) the BIA s 5 Saleh abandoned his 212(c) application because, after filing the Form I-191, his counsel determined that Saleh had also been convicted of a firearms offense, see supra note 2, which rendered him ineligible for 212(c) relief. -6- 1 interpretation of the INA, under which he remains convicted of a 2 removable 3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 4 467 U.S. 837 (1984) and (2) violates 28 U.S.C. § 1738, which 5 obliges federal courts to give full faith and credit to state 6 acts, 7 erroneously concluded that he was ineligible for cancellation of 8 removal. 9 10 11 offense, records, A. and (1) is not judicial entitled proceedings; to deference and (B) under the BIA We reject each of his arguments. Did the BIA err in concluding that Saleh remains convicted of a removable offense for federal immigration purposes? 12 13 14 15 1. Is the BIA s interpretation of the INA at issue in this case entitled to deference under Chevron? The BIA determined that Saleh was removable pursuant to 8 16 U.S.C. § 1227(a)(2)(A)(i), which makes removable any alien who 17 (I) is convicted of a crime involving moral turpitude committed 18 within five years (or 10 years in the case of an alien provided 19 lawful permanent resident status . . .) after the date of 20 admission, and (II) is convicted of a crime for which a sentence 21 of one year 22 concluded that Saleh s original conviction for receiving stolen 23 property, in violation of Cal. Pen. Code § 496(a), satisfies 24 these requirements. 25 Cir. 2000). 26 offense under state law at one time, he subsequently secured an 27 amendment of the State s judgment in an effort to avoid adverse or longer may be imposed. The BIA properly See Michel v. INS, 206 F.3d 253, 263 (2d Although Saleh thus stood convicted of a removable -7- 1 immigration consequences and not because of any procedural or 2 substantive defect in the original conviction. 3 issue before us is whether, under these circumstances, Saleh 4 remains 5 immigration purposes, viz. within the meaning of 8 U.S.C. § 6 1227(a)(2)(A)(i) and the INA s definition of conviction, 8 7 U.S.C. § 1101(a)(48)(A).6 8 convicted of a removable offense Therefore, the for federal This is a question of federal statutory interpretation. We 9 have previously observed that [w]hether one has been convicted 10 within the language of [federal] statutes is necessarily . . . a 11 question of federal, not state, law, despite the fact that the 12 predicate offense and its punishment are defined by the law of 13 the State. 14 1999) (alternations in original, citation omitted); cf. Dickerson 15 v. New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983) (holding 16 that in the absence of a plain indication to the contrary, . . 17 . it is to be assumed when Congress enacts a statute that it does 6 United States v. Campbell, 167 F.3d 94, 97 (2d Cir. That provision defines conviction as [A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where--(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A). -8- 1 not intend to make its application dependent on state law 2 (alterations in original, citation omitted)). 3 We review the BIA s interpretation of the INA under the 4 familiar two-step analysis set forth in Chevron, 467 U.S. 837. 5 See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). 6 we determine whether the provision in question is ambiguous; 7 [i]f the intent of Congress is clear, that is the end of the 8 matter; for the court, as well as the agency, must give effect to 9 the unambiguously expressed intent of Congress. First, Chevron, 467 10 U.S. at 842-43. 11 with respect to the specific issue, the question for the court is 12 whether 13 construction of the statute, and thus entitled to deference. 14 Id. at 843. 15 the If, however, the statute is silent or ambiguous agency s answer is based on a permissible Turning to the first step of this analysis, we conclude that 16 Congress intent on the treatment 17 convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous. 18 was deemed removable because, inter alia, he is an alien who is 19 convicted of a crime involving moral turpitude, 8 U.S.C. § 20 1227(a)(2)(A)(i), and conviction is defined, in pertinent part, 21 as a formal judgment of guilt of the alien entered by a court, 22 8 U.S.C. § 1101(a)(48)(A). This language permits a spectrum of 23 possible interpretations. On one end of the spectrum, Congress 24 may have intended that where an alien receives any type of post- -9- of vacated or amended Saleh 1 conviction relief -- either through an amendment nunc pro tunc, 2 an expungement, or some other remedy -- the immigration law 3 should treat the conviction as if it never occurred, regardless 4 of the reason for the relief. 5 means 6 original] crime and there is no longer any formal judgment of 7 guilt of the alien entered by a court. 8 spectrum, Congress may have intended that no post-conviction 9 relief whatsoever should have any effect on whether an alien 10 stands convicted of a removable offense, again, regardless of 11 the reason for the relief. 12 middle position: that certain types of post-conviction relief 13 would affect an alien s conviction status under the INA, but 14 others would not, depending upon the reason for the relief. 15 Neither the relevant statutory language nor legislative history 16 allows 17 represents Congress unambiguous intent. 18 Gonzales, 432 F.3d 193, 206 (3d Cir. 2005); Murillo-Espinoza v. 19 INS, 261 F.3d 771, 774 (9th Cir. 2001). 20 that us the to defendant conclude Under this view, the expungement no longer is convicted of [the On the other end of the Or, Congress may have intended some that any of these interpretations See, e.g., Pinho v. Accordingly, we turn to Chevron s second step, which directs 21 us to consider whether the BIA adopted a permissible 22 construction of the statute. 23 making this assessment, [i]t is not necessary that we conclude 24 that the agency s interpretation of the statute is the only Chevron, 467 U.S. at 843. -10- In 1 permissible interpretation, nor that we believe it to be the best 2 interpretation of the statute. Skubel v. Fuoroli, 113 F.3d 330, 3 336 (2d Cir. 1997) (citing Chevron, 467 U.S. at 843 n.11). 4 Rather, to affirm the BIA s determination, we need only conclude 5 that the agency s interpretation is rational and consistent 6 with the statute. Protection & Advocacy for Persons with 7 Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 8 124 (2d Cir. 2006) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 9 (1990)). 10 The BIA has adopted an interpretation of 8 U.S.C. § 11 1101(a)(48)(A) that distinguishes between convictions vacated on 12 the merits, which the BIA does not treat as convictions within 13 the meaning of the provision, and convictions vacated for other 14 reasons, including to avoid immigration hardships, which the BIA 15 continues to treat as convictions. 16 fell into the latter category, the BIA concluded that the nunc 17 pro tunc amendment did not affect his conviction status for 18 removability purposes. 19 Saleh s contention that the interpretation is unreasonable.7 20 Over the last Because Saleh s conviction For reasons to be discussed, we reject 20 years, there has been a consistent 21 broadening of the meaning of conviction in the INA. 22 1996, the INA did not contain 7 a statutory Until definition of Although Saleh claims that the agency erred as a matter of law in reaching its decision, we will construe his argument as urging that the BIA s interpretation was unreasonable. -11- 1 conviction, and for most of that time, the BIA generally took 2 the 3 expunged under state law no longer stood convicted of a removable 4 offense for federal immigration purposes. 5 19 I. & N. Dec. 546, 550-52 (BIA 1988). 6 acknowledged, albeit in a somewhat different context from the 7 instant case, that its own prior approach was unduly deferential 8 to state definitions of conviction and had thus frustrated 9 congressional intent: [F]orm has been placed over substance, and 10 aliens who are clearly guilty of criminal behavior and whom 11 Congress 12 permitted 13 attendant upon a conviction. 14 attempted in Ozkok to remedy the problem, adopting a broader test 15 for 16 immigration purposes. 17 position that intended to an to escape determining alien be whose conviction considered the immigration whether a vacated or See Matter of Ozkok, In 1988, the BIA convicted have consequences Id. at 551. conviction is been normally Accordingly, the BIA existed for federal But Congress was of the opinion that the BIA had not gone 18 far enough. See Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir. 19 2006) 20 dissatisfaction with the Ozkok test when it amended the INA to 21 change 22 therefore codified, for the first time, a definition of the term 23 conviction in the INA. 24 see (noting the also that Congress definition Francis, 442 of subsequently conviction in indicated 1996 ). its Congress See 8 U.S.C. § 1101(a)(48)(A) (1996); F.3d at -12- 140. This definition was 1 specifically intended to broaden the definition of conviction 2 under the INA that had been previously used by the BIA. 3 Francis, 4 definition of conviction was narrower [prior to Congress 5 intervention] than it is today ). 6 expanded the Ozkok definition by including convictions where the 7 adjudication of guilt was deferred. 8 the amendments explained, there exist[s] in the various states 9 a myriad 442 of F.3d at 139 provisions (noting for that [t]he See applicable In particular, Congress As the Conference Report on ameliorating the effects of a 10 conviction. As a result, aliens who have clearly been guilty of 11 criminal behavior and whom Congress intended to be considered 12 convicted have escaped the immigration consequences normally 13 attendant upon a conviction. 14 224. H.R. Conf. Rep. No. 104-828 at 15 Interpreting the new definition, the BIA identified two 16 primary aims that it believed Congress sought to accomplish: to 17 focus the conviction inquiry on the original determination of 18 guilt and to implement a uniform federal approach. 19 Roldan, 22 I. & N. Dec. 512, 521-22 (BIA 1999). 20 rationales, the BIA, in a series of cases culminating in Matter 21 of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other 22 grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), 23 further 24 particular procedural mechanism considered by Congress in its expanded the definition -13- of Matter of Relying on these conviction beyond the 1 1996 amendments to the INA. 2 that Congress objected generally to many state actions allowing 3 aliens to escape the immigration consequences normally attendant 4 upon a conviction, H.R. Conf. Rep. No. 104-828 at 224, and that 5 Congress did not intend to allow an alien to escape those 6 consequences by means of a state vacatur that was not on the 7 merits. 8 the 9 relief will be determined by considering the State court s 10 motivation in granting the relief, e.g., avoiding immigration 11 hardships, 12 substantive or procedural defect in the predicate conviction. 13 Specifically, the BIA held that 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Pickering, the BIA concluded Pickering gave effect to this objective by holding that federal immigration recognizing consequences the of defendant s all post-conviction rehabilitation, or a [T]here is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships. Thus, if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a conviction within the meaning of section 101(a)(48)(A) [8 U.S.C. § 1101(a)(48)(A)]. If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains convicted for immigration purposes. Id. at 624. 29 Relying in part on this reasoning, the BIA in the appeal now 30 before us concluded that Saleh remained convicted of the original 31 removable offense because the amendment to Saleh s judgment of -14- 1 conviction was obtained solely to avoid immigration hardships 2 and not to remedy a procedural or substantive defect in the 3 underlying proceedings. 4 The BIA s interpretation in both Pickering and the instant 5 case is reasonable. 6 entirely consistent with Congress intent in enacting the 1996 7 amendments to broaden the definition of conviction and advances 8 the two purposes earlier identified by the BIA: it focuses on the 9 original attachment of guilt (which only a vacatur based on some 10 procedural or substantive defect would call into question) and 11 imposes 12 Second, from a practical perspective, while state convictions are 13 a useful way for the federal government to identify individuals 14 who, because of their criminal history, may be appropriate for 15 removal, there will still remain individuals who are guilty of 16 morally turpitudinous conduct, see Michel, 206 F.3d at 263, and 17 therefore suitable for removal even though they do not have a 18 still-standing conviction for a removable offense under state 19 law. 20 convictions provide a convenient, although somewhat inexact, way 21 of identifying especially risky people and that [t]here is no 22 inconsistency 23 postconviction state actions . . . that vary widely from State to 24 State and that provide less than positive assurance that the uniformity Cf. For on Dickerson, in the the 460 one thing, the enforcement U.S. refusal of -15- at 120 of interpretation immigration (noting Congress to be that is laws. state bound by 1 person in question no longer poses an unacceptable risk of 2 dangerousness. (internal citations omitted)). 3 these individuals will remain removable, as Congress intended. Under Pickering, 4 Particularly as applied to post-conviction relief granted to 5 aid the defendant in avoiding immigration hardship, we think the 6 BIA s position eminently reasonable: When a conviction is amended 7 nunc pro tunc solely to enable a defendant to avoid immigration 8 consequences, in contrast to an amendment or vacatur on the 9 merits, there is no reason to conclude that the alien is any less 10 11 suitable for removal.8 For this reason, we find particularly instructive the 12 settled law of our sister circuits, which holds that the BIA has 13 reasonably 14 removable offense for federal immigration purposes when a state 15 vacates the predicate a conviction pursuant to a rehabilitative 16 statute. 17 Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Pinho, 432 concluded See, e.g., that an alien Pickering, 8 465 remains F.3d convicted at 266; of Alim a v. We note that we have already embraced, in a slightly different context, approximately the BIA s standard in Pickering. In Campbell, we held that the district court could apply a sentencing enhancement called for by federal law for a vacated state aggravated felony conviction because [defendant s] conviction was not reversed, and the vacatur order was not based on any showing of innocence or on any suggestion that the conviction had been improperly obtained. 167 F.3d at 98. Although Campbell is not controlling in this case, we continue to believe that this standard, which the BIA has substantially adopted and applied to the removal context in Pickering, is consistent with congressional intent. -16- 1 F.3d at 195; Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2 2005); 3 Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo- 4 Espinoza, 261 F.3d at 774; Herrera-Inirio v. INS, 208 F.3d 299, 5 305 (1st Cir. 2000). 6 body of law by arguing that his vacatur, by contrast, had 7 absolutely nothing to do with rehabilitation. 8 course, but his argument proves too much. 9 sense for federal law to ignore vacaturs for rehabilitation, 10 which, at least in some cases, reflect a measured judgment that 11 the defendant is rehabilitated, but recognize vacaturs that 12 solely aim to help the defendant avoid adverse immigration 13 consequences. Cruz-Garza, 396 F.3d at 1129; Resendiz-Alcaraz v. Saleh attempts to distinguish away this We agree, of It would make little 14 In light of the foregoing, we join our sister circuits in 15 holding that the BIA s conclusion -- that an alien remains 16 convicted of a removable offense for federal immigration purposes 17 when the predicate conviction is vacated simply to aid the alien 18 in avoiding adverse immigration consequences and not because of 19 any procedural or substantive defect in the original conviction 20 -- is a permissible construction of the statute and is therefore 21 entitled to deference. 22 341, 342-43 (6th Cir. 2007) ( We deny the petitions for review on 23 the ground that the state court s vacation of Sanusi s conviction 24 was ineffective for immigration purposes because it was done See, e.g., Sanusi v. Gonzales, 474 F.3d -17- 1 solely 2 consequences to petitioner. ) (citing Zaitona v. INS, 9 F.3d 432 3 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 4 2005).9 5 6 7 8 9 for the 2. We turn purpose of ameliorating the immigration Does the BIA s construction of 8 U.S.C. § 1101(a)(48)(A) violate the full faith and credit statute? now the to Saleh s BIA additional adopted, and argument which we that here the 10 interpretation deem 11 reasonable, violates the statutory analogue of the full faith and 12 credit clause. 13 full faith and credit to state acts, records, and judicial 14 proceedings); cf. U.S. Const. art. IV, § 1. 15 First Circuit that section 1101(a)(48)(A) does not infract 16 applicable principles of full faith and credit, Herrera-Inirio, 17 208 F.3d at 307, because neither the constitutional clause nor 18 its statutory analogue (binding federal courts) purports to 19 prevent federal legislative authorities from writing federal 20 statutes that differ from state statutes or from attaching, to 21 words in a federal statute, a meaning that differs from the 22 meaning attached to the same word when used in a statute enacted See 28 U.S.C. § 1738 (federal courts must give 9 We agree with the We note that our holding in this case is limited to postconviction relief granted solely to avoid adverse immigration consequences and not because of any procedural or substantive defect in the original conviction, and we leave for another day the effect of post-conviction relief granted for other reasons. -18- 1 by a state, Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) 2 (Breyer, J.). 3 Similarly, we have held that the full faith and credit 4 statute does not prevent a federal court from taking cognizance 5 of a state youthful offender adjudication as a prior conviction 6 in sentencing even though the adjudication is not regarded as a 7 conviction under state law: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 United 22 (internal citations omitted). 23 interpreting how to apply Saleh s vacated State conviction for 24 receiving stolen property to the INA and is not refusing to 25 recognize or relitigating the validity of Saleh s California 26 state conviction. 27 thereby violated. 28 29 30 31 32 [T]he principles of federalism and comity embodied in the full faith and credit statute, Growe v. Emison, 507 U.S. 25, 35, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), are not endangered when a sentencing court, not questioning the propriety of the state s determination in any way, interprets how to apply New York s youthful offender adjudications to a Guidelines analysis. . . . The federal sentencing court is neither refusing to recognize nor relitigating the validity of [defendant s] New York state judgment of conviction or his youthful offender sentence. Instead, it is merely noticing and acting upon the fact of [defendant s] prior conviction. B. States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) Here, too, the BIA is simply The full faith and credit statute is not Did the BIA properly deny Saleh s application for cancellation of removal? Finally, the BIA did not err in affirming the IJ s denial of Saleh s application for cancellation of removal. The application -19- 1 was untimely. 2 because he does not satisfy the provision s seven-year continuous 3 residence requirement, 8 U.S.C. § 1229b(a)(2). His conviction of 4 a removable offense (which, for the above reasons, stands for 5 federal immigration purposes) triggers the stop-time rule, 8 6 U.S.C. § 1229b(d)(1), under which an alien s continuous residency 7 or physical 8 removal, on the date he commits a qualifying offense or on the 9 date a notice to appear is filed. Accordingly, Saleh s period of 10 continuous residence ended, at the very latest, in 1993, after 11 only three years in the country. 12 Gonzales, 471 F.3d 60, 61-62 (2d Cir. 2006). 13 14 In any event, Saleh was ineligible for the relief presence ends, for purposes of cancellation of See generally Tablie v. III. CONCLUSION We have considered all of Saleh s arguments on appeal and 15 find them to be without merit. For the foregoing reasons, we 16 deny Saleh s petition for review. 17 of removal in this case is denied as moot. -20- The pending motion for a stay

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