Waugh v. Holder
642 F.3d 1279
| 10th Cir. | 2011Background
- Petitioner Waugh, a Jamaican citizen and LPR, petitions for review of removal order.
- Petitioner pled guilty in Utah (Aug 2009) to unlawful sexual contact with a minor (third-degree felony).
- IJ found petition removable on two grounds: aggravated felony (§ 1101(a)(43)(A)) and child abuse (§ 1227(a)(2)(E)(i)).
- Pending state-court motion to withdraw plea invoked Padilla v. Kentucky, arguing improper immigration consequences advice.
- BIA denied relief, treating this as collateral attack on conviction; relied on finality for immigration purposes.
- Petitioner contends due process and that government must prove Sixth Amendment compliance of underlying conviction; the government counters finality and non-collateral attack rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Padilla burden expansion | Waugh: government must prove Sixth Amendment compliance of conviction. | Holder: Padilla does not expand removal-proof requirements; cannot adjudicate conviction validity in immigration proceedings. | Padilla does not require proving Sixth Amendment compliance as an element of removal. |
| Finality of conviction for immigration purposes | Pending state motion affects finality and removal should await resolution. | Conviction final for immigration purposes once formal judgment entered, despite collateral attacks. | Conviction final for removal purposes despite pending collateral challenges. |
| Collateral attack in immigration proceedings | VII: could challenge underlying conviction as basis for removal in immigration proceedings. | IMMIG: cannot collaterally attack validity of state conviction in removal proceedings; state court remedies exist. | Alien cannot collaterally attack underlying state conviction in immigration proceedings. |
| Scope of government burden in proving removability | Burden includes proving underlying conviction meets Padilla standards. | Burden is to prove existence of conviction by clear and convincing evidence; no Padilla-based proof on validity. | Government need only prove a final conviction by clear and convincing evidence; Padilla not invoked to alter this. |
Key Cases Cited
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) ( Sixth Amendment right to effective assistance includes information about deportation risk)
- Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (cannot collaterally attack state conviction in deportation proceedings)
- Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) (ineffective-assistance claims in immigration proceedings improper collateral challenges)
- Adame-Orozco, 607 F.3d 647 (3d Cir. 2010) (definition of conviction in immigration context; finality after judgment)
- Paredes v. Att'y Gen. of U.S., 528 F.3d 196 (3d Cir. 2008) (pendency of collateral attacks does not vitiate finality for removal)
- Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (administrative process not suited to adjudicate underlying criminal validity)