Vasiliu v. Holder
2011 U.S. App. LEXIS 11670
| 10th Cir. | 2011Background
- Vasiliu, a Romanian native and citizen, came to the United States as a permanent resident in 1982.
- He pleaded guilty in New York (1991) to criminal possession of a weapon and in Oklahoma (2002) to assault and battery/domestic abuse; the Oklahoma sentence was suspended after guilty plea.
- DHS served a notice to appear in August 2009 charging removability under 8 U.S.C. §§ 1227(a)(2)(A)(iii), (C), and (E)(i) based on aggravated felony, firearms, and domestic violence convictions.
- In immigration court, Vasiliu admitted removability and did not apply for relief, but claimed the convictions supporting removability were not final due to post-conviction relief efforts.
- The IJ found the domestic-abuse conviction final and affirmed removability; Vasiliu was ordered removed to Romania.
- BIA affirmed, rejecting Padilla-based objections and noting that, absent a void on its face, a conviction cannot be collaterally attacked in removal proceedings; Vasiliu filed a petition for review asserting ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Padilla claims are reviewable in removal proceedings | Vasiliu argues Padilla requires relief for counsel's ineffective assistance regarding deportation risk. | Government argues §1252(a)(2)(C) bars review of underlying convictions, with §1252(a)(2)(D) restricting review to constitutional/legal claims only. | Jurisdiction lacks to review collateral challenges to the predicate conviction; Padilla claim not reviewable; petition dismissed. |
Key Cases Cited
- Vargas v. Department of Homeland Security, 451 F.3d 1107 (10th Cir. 2006) (interprets jurisdictional scope of review for aggravated-felon removals under §1252(a)(2)(D))
- Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (collateral attacks on state convictions not reviewable in removal proceedings)
- Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005) (post-conviction vacatur cannot support removal)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (requires informing client of deportation risks; cannot be used to collaterally attack conviction in removal)