Waugh v. Holder, No. 10-9551 (10th Cir. 2011)
Annotate this CasePetitioner Vickers Waugh appealed a decision of the Board of Immigration Appeals (BIA) that ordered him removed from the United States. In August 2009, Petitioner pled guilty in Utah state court to one count of felonious sexual contact with a minor. Following his conviction, the government instituted removal proceedings. The immigration judge (IJ) found petitioner removable on two grounds: for sexual abuse of a minor and for child abuse. While Petitioner's proceedings were pending, the Supreme Court issued its opinion in "Padilla v. Kentucky," which held that a non-citizen defendant had a Sixth Amendment right to be advised of the risk of removal resulting from a guilty plea. Relying on that case, Petitioner unsuccessfully moved to terminate his removal proceedings. On appeal to the Tenth Circuit, Petitioner challenged the IJ and BIA's refusal to terminate the removal proceedings against him, arguing that his constitutional rights had been violated when no one advised him of the potential of removal when he pled guilty to the state felony charges. The Tenth Circuit found that "Petitioner attempt[ed] to frame his argument as a denial of due process . . . [i]t appears Petitioner's true objection, however, is to the way the IJ and BIA exercised their discretion. . . . This challenge raise[d] neither a constitutional nor a legal issue." The Court found it did not have jurisdiction to review his petition, and declined further review.
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