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Fraser v. Lynch

United States Court of Appeals, Eighth Circuit

July 31, 2015

Curtis Leonard Fraser, Petitioner
v.
Loretta E. Lynch, Attorney General of the United States, Respondent

Submitted June 10, 2015

Petition for Review of an Order of the Board of Immigration Appeals.

For Curtis Leonard Fraser, Petitioner: Herbert Igbanugo, Jason A. Nielson, Igbanugo Partners, Minneapolis, MN.

For Loretta E. Lynch, Attorney General of the United States, Respondent: Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; Matthew Albert Connelly, Trial Attorney, Karen Yolanda Drummond, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

Before LOKEN, BYE, and KELLY, Circuit Judges.

OPINION

KELLY, Circuit Judge.

I. Background

In July 2003, Curtis Leonard Fraser, a native and citizen of Canada, married a United States citizen. In January 2006, his wife filed an I-130 Petition for Alien Relative to adjust Fraser's status based on their marriage, and Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in September 2007 by United States Citizenship and Immigration Services. In November 2007, however, the Department of Homeland Security (DHS) determined that Fraser's application had been approved in error. The DHS believed that in 1991, before entering the United States, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. DHS accordingly issued a Notice to Appear.

In July 2010, Fraser appeared before the Immigration Judge (IJ) pursuant to the Notice to Appear. To prove the prior conviction, the government provided a Trial Disposition from Canada dated March 22, 1991, as well as an Information dated April 26, 1990. The Information identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition referred to an attached indictment on which Fraser had been arraigned, but the Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The government did not produce a document with the title " Indictment." After a continuance, the government addressed this deficiency by providing the IJ with a copy of the section of the Canadian Criminal Code that defines " indictment" to include an " information."

The IJ then concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking before his entry into the United States. The IJ determined that Fraser was therefore inadmissible at the time of his adjustment of status in 2007, see 8 U.S.C. § 1182(a)(2)(A)(i)(II) ( " [A]ny alien convicted of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of . . . a foreign country relating to a controlled substance (as defined in section 802 of title 21), is inadmissible." ), and deportable under 8 U.S.C. § 1227(a)(1)(A) (An " alien who at the time of entry or adjustment of status was . . . inadmissible by the law existing at such time is deportable." ).

Fraser moved to terminate his removal proceedings on the grounds that the government failed to prove the prior drug conviction, and to adjust his status to become a lawful permanent resident. The IJ denied the motion, and also denied Fraser's motion to reconsider, thereby sustaining the charge of removability and finding that Fraser was not eligible for adjustment of status. The BIA dismissed Fraser's appeal. Fraser seeks review of the BIA's dismissal of his appeal of the IJ's decisions. Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

II. Discussion

The issue[1] on appeal is " whether substantial evidence supports a finding that clear, convincing, and unequivocal evidence established" Fraser had a Canadian conviction for possession of cocaine for the purpose of trafficking. See Sandoval-Loffredo v. Gonzales, 414 F.3d 892, 895 (8th Cir. 2005); see also 8 U.S.C. § 1229a(c)(3)(A) (The government bears the burden of proving an alien is deportable by " clear and convincing evidence." ). " We review the IJ's findings of fact . . . under the deferential substantial evidence standard, and must treat those findings as 'conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Sandoval-Loffredo, 414 F.3d at 895 (quoting 8 U.S.C. § 1252(b)(4)(B)). In reviewing the IJ's decision, we are required to take into account the government's burden of proving Fraser's conviction. Id. There must be substantial evidence to support the IJ's finding that the government met its burden of proving Fraser's conviction by clear, convincing, and unequivocal evidence. Id.

The primary evidence presented to the IJ to prove the disputed conviction included the Information and Trial Disposition. The government presented certified copies from the Canadian courts of both of these documents. See 8 U.S.C. § 1229a(c)(3)(B) (stating that a certified copy of certain documents or records " shall constitute proof of a criminal conviction" for purposes of removal proceedings); see also 8 C.F.R. § 287.6(d) (setting forth the appropriate procedure by which a record is certified by a Canadian governmental entity). Fraser nevertheless asserts that these records were insufficient to prove he had been convicted of an offense that rendered him inadmissible. First, the Information was filed in Saskatchewan. The Trial Disposition, in contrast, was filed in Manitoba. Thus, Fraser argues there is not sufficient evidence to support the conclusion that the two documents refer to the same case. Second, the Trial Disposition refers to an " indictment," and the government only provided the IJ with the Information. Without the referenced indictment, Fraser asserts, we cannot know what offense he actually pleaded guilty to, since the Trial Disposition is silent ...


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