Adam John Brailsford v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM JOHN BRAILSFORD,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-77319
Agency No. A076-717-845
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 3, 2010
Pasadena, California
Before: SCHROEDER, RYMER and WARDLAW, Circuit Judges.
Adam John Brailsford is a citizen and native of South Africa. He petitions
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) conclusion that he is ineligible for adjustment of status
under the Immigration and Nationality Act (“INA”) § 245, 8 U.S.C. § 1255, due to
FILED
MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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his inadmissibility under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. §
1182(a)(2)(A)(i)(II). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and
we deny the petition.
The government charged, and the BIA concluded, that Brailsford is
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), because of his two prior South
African convictions for possession of controlled substances. Brailsford presented
evidence that these convictions were expunged pursuant to a South African
presidential pardon. However, on appeal, Brailsford has not met his burden to
show that he is “clearly and beyond doubt entitled to be admitted and is not
inadmissible.” 8 U.S.C. § 1229a(c)(2)(A).
Brailsford’s equal protection challenge that his South African presidential
pardon should lead to a waiver, pursuant to 8 U.S.C. § 1227(a)(2)(A)(vi), fails.
This statute is inapplicable, because Brailsford has been charged with
inadmissibility pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II). Unlike 8 U.S.C. §
1227(a)(2)(A)(vi), which provides a waiver of deportability to aliens who have
committed specifically enumerated crimes, but who have received a pardon from
the President of the United States or by the Governor of any of the several States, 8
U.S.C. § 1182(a)(2)(A)(i)(II) does not provide waivers of inadmissibility based on

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any pardon. Brailsford has failed to allege and prove that an alien with a foreign
presidential pardon for controlled substance violations is treated any differently
than those with domestic presidential pardons under INA § 212(a)(2)(A)(i)(II). See
Dillingham v. INS, 267 F.3d 996, 1005-07 (9th Cir. 2001).
The BIA held, and the government concedes, that a conviction does not exist
for immigration purposes if it was vacated due to defects in the underlying
proceedings. Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003). However,
Brailsford failed to submit evidence to explain the basis for the expungement and
presidential pardon before the IJ, and did not submit a motion to remand to the IJ
with the BIA. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008).
Should Brailsford obtain new evidence demonstrating that the pardon and
expungement were granted due to a defect in the underlying proceedings, he may
seek to reopen with the BIA. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c).
PETITION DENIED.

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