Saleh v. Gonzales

05-5909
Saleh v. Gonzales
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
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6
August Term 2006 7
8
Argued: (April 30, 2007 Decided: July 17, 2007 9
Amended: August 3, 2007) 10
11
Docket No. 05-5909-ag 12
13
--------------------------------------------------X 14
15
YASSER NASSER SALEH, 16
17
Petitioner, 18
19
- against - 20
21
ALBERTO GONZALES, Attorney General of the United States, 22
23
Respondent. 24
25
--------------------------------------------------X 26
27
Before: FEINBERG, SOTOMAYOR, and HALL, Circuit Judges. 28
29
Petitioner seeks review of a decision of the Board of 30
Immigration Appeals affirming decisions of the Immigration Judge 31
denying his motion to terminate removal proceedings, finding him 32
removable, and denying his application for relief. 33
34
Petition for review denied. 35
36
ERIC W. SCHULTZ, Sacks, Kolken & Schultz, 37
Buffalo, New York, for Petitioner. 38
39
SHANE CARGO, Assistant United States Attorney, 40
(Michael J. Garcia, United States Attorney, 41
Sara L. Shudofsky, Assistant United States 42
Attorney, on the brief), United States 43
Attorney’s Office for the Southern District 44
of New York, for Respondent. 45
46
47

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FEINBERG, Circuit Judge: 1
Yasser Nasser Saleh, a lawful permanent resident of the 2
United States, was charged as removable under section 3
237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), 4
8 U.S.C. § 1227(a)(2)(A)(i). The basis of the charge was his 5
conviction in state court of receiving stolen property, which is 6
a removable offense, i.e., a “crime involving moral turpitude” 7
(“CIMT”) for which a sentence of one year or longer could have 8
been imposed. In an effort to escape the adverse immigration 9
consequences of that conviction, Saleh thereafter obtained an 10
amendment of the judgment so that he instead stood convicted of 11
petty theft, which is not a removable offense. 12
In this petition, Saleh seeks review of the decision of the 13
Board of Immigration Appeals (“BIA”) affirming decisions of the 14
Immigration Judge (“IJ”) (A) rejecting Saleh’s argument that he 15
no longer stands convicted of a removable offense and therefore 16
denying his motion to terminate his removal proceedings and (B) 17
finding Saleh removable as charged and denying his application 18
for relief from removal. In re Saleh, No. A41 982 414 (B.I.A. 19
Oct. 4, 2005), aff’g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22, 20
2004). 21
In reviewing these decisions, the principal question before 22
us is whether the BIA erred in concluding that Saleh remains 23
“convicted” of a removable offense for federal immigration 24

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1 The statute provides, in pertinent part, that “[e]very
person who buys or receives any property that has been stolen or
that has been obtained in any manner constituting theft or
extortion, knowing the property to be so stolen or obtained, or
who conceals, sells, withholds, or aids in concealing, selling,
or withholding any property from the owner, knowing the property
to be so stolen or obtained, shall be punished by imprisonment
in a state prison, or in a county jail for not more than one
year.” Cal. Pen. Code § 496(a). Saleh was convicted under
section 496.1 of the California Penal Code. That provision has
since been recodified as section 496(a). Throughout, this
opinion references the provision at its current location in
section 496(a).
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purposes even though the state court amended its judgment of 1
conviction to effectively expunge his conviction of a removable 2
offense under state law. For the reasons set forth below, we 3
hold that the BIA did not err because the amendment was secured 4
solely to aid Saleh in avoiding immigration consequences and was 5
not based on any procedural or substantive defect in the original 6
conviction. We therefore deny the petition. 7
I. BACKGROUND 8
Saleh, a native and citizen of Yemen, was admitted to the 9
United States as a lawful permanent resident in 1990. In 1993, 10
Saleh was convicted in California state court, following his 11
plea of nolo contendere, of receiving stolen property in 12
violation of section 496(a) of the California Penal Code.1 The 13
offense carries a maximum sentence of one-year imprisonment, see 14
Cal. Pen. Code § 496(a), although the court imposed a lower 15

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2 This was neither Saleh’s first nor last brush with the
law. He had already been convicted in 1992 of unlawfully
discharging a firearm and driving while intoxicated, and was
thereafter convicted in 1997 of criminal mischief, in 1998 of
driving while intoxicated, and in 2000 of driving while
intoxicated.
3 On March 1, 2003, the INS was reconstituted into two
agencies, the Bureau of Immigration and Customs Enforcement and
the U.S. Citizenship and Immigration Services, both within the
Department of Homeland Security. See Jian Hui Shao v. Bd. of
Immigration Appeals, 465 F.3d 497, 499 n.3 (2d Cir. 2006)
Because the proceedings in this case began before that date, we
will continue to refer to the agency as the “INS.”
-4-
sentence.2 In July 2001, the Immigration and Naturalization 1
Service (“INS”) commenced removal proceedings,3 charging that 2
Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his 3
1993 crime qualifies as a CIMT, committed within 10 years after 4
the date of admission, for which a sentence of one year or longer 5
could have been imposed. 6
Subsequently, for the announced purpose of escaping adverse 7
immigration consequences, Saleh moved in California state court 8
for an amendment of the judgment convicting him of receiving 9
stolen property, effective nunc pro tunc, so that he would 10
instead stand convicted of petty theft in violation of section 11
488 of the California Penal Code. Because this is not a crime 12
for which a sentence of one year or longer could have been 13
imposed, it is not a removable offense. In a declaration 14
accompanying Saleh’s motion, his counsel expressly referred to 15
the immigration consequences of Saleh’s original conviction, 16

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4 Although the Government bears the burden of proving, by
clear and convincing evidence, that Saleh is removable, see 8
U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345
(2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465
F.3d 263, 268-69 (6th Cir. 2006); Cruz-Garza v. Ashcroft, 396
F.3d 1125, 1130 (10th Cir. 2005), Saleh did not dispute before
the IJ or the BIA or in his brief in this appeal that the
California court amended the judgment of conviction to help him
avoid immigration hardships, so we deem any argument to the
contrary waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
542 n.1 (2d Cir. 2005).
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stating that “the alternative disposition of petty theft, which 1
carries a six month maximum sentence would not have the adverse 2
immigration consequences.” Moreover, no evidence or argument 3
presented to that court identified any substantive or procedural 4
defects in Saleh’s conviction. The California court granted the 5
motion. 6
Saleh thereafter asked the IJ to terminate the agency’s 7
removal proceedings, arguing that petty theft is not a removable 8
offense. The IJ denied the motion, reasoning that, despite the 9
California court’s amendment to the judgment of conviction, Saleh 10
remained “convicted” of receiving stolen property, a removable 11
offense for federal immigration purposes, because the amendment 12
was not “based on any showing of innocence or any suggestion that 13
the conviction had been improperly obtained.” Instead, the IJ 14
found that the conviction was amended “solely for the purpose of 15
circumventing the immigration laws of the United States.”4
16
After the IJ denied Saleh’s motion to terminate his removal 17
proceedings and the BIA declined to entertain his interlocutory 18

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5 Saleh abandoned his 212(c) application because, after
filing the Form I-191, his counsel determined that Saleh had
also been convicted of a firearms offense, see supra note 2,
which rendered him ineligible for 212(c) relief.
-6-
appeal of that decision, Saleh contested removability and sought 1
relief from removal. He initially filed a Form I-191, a 2
prerequisite to obtaining a waiver of deportation under former 3
section 212(c) of the INA. Subsequently, however, Saleh 4
abandoned his application for 212(c) relief and instead filed a 5
motion to substitute an application for cancellation of removal.5
6
The IJ found Saleh removable and denied his application for 7
cancellation of removal as untimely. 8
The BIA adopted and affirmed the IJ’s decision and dismissed 9
the appeal. Relying on its prior decision in Matter of 10
Pickering, 23 I. & N. Dec. 621 (BIA 2003), the Board agreed with 11
the IJ that Saleh remained “convicted” of a removable offense for 12
federal immigration purposes because the amendment of the 13
judgment of conviction was not based on “any substantive or 14
procedural defect in the underlying criminal proceedings,” and 15
Saleh was therefore removable. Saleh filed a timely petition for 16
review. 17
II. ANALYSIS 18
In his petition, Saleh argues that the BIA erred in finding 19
him removable and in denying his application for cancellation of 20
removal. In support, he argues principally that (A) the BIA’s 21

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-7-
interpretation of the INA, under which he remains convicted of a 1
removable offense, (1) is not entitled to deference under 2
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 3
467 U.S. 837 (1984) and (2) violates 28 U.S.C. § 1738, which 4
obliges federal courts to give full faith and credit to state 5
acts, records, and judicial proceedings; and (B) the BIA 6
erroneously concluded that he was ineligible for cancellation of 7
removal. We reject each of his arguments. 8
A. Did the BIA err in concluding that Saleh remains 9
convicted of a removable offense for federal 10
immigration purposes? 11
1. Is the BIA’s interpretation of the INA at issue 12
in this case entitled to deference under Chevron? 13
14
The BIA determined that Saleh was removable pursuant to 8 15
U.S.C. § 1227(a)(2)(A)(i), which makes removable any alien who 16
“(I) is convicted of a crime involving moral turpitude committed 17
within five years (or 10 years in the case of an alien provided 18
lawful permanent resident status . . .) after the date of 19
admission, and (II) is convicted of a crime for which a sentence 20
of one year or longer may be imposed.” The BIA properly 21
concluded that Saleh’s original conviction for receiving stolen 22
property, in violation of Cal. Pen. Code § 496(a), satisfies 23
these requirements. See Michel v. INS, 206 F.3d 253, 263 (2d 24
Cir. 2000). Although Saleh thus stood convicted of a removable 25
offense under state law at one time, he subsequently secured an 26
amendment of the State’s judgment in an effort to avoid adverse 27

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6 That provision defines “conviction” as
[A] formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld,
where--(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant
a finding of guilt, and (ii) the judge has ordered some
form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
-8-
immigration consequences and not because of any procedural or 1
substantive defect in the original conviction. Therefore, the 2
issue before us is whether, under these circumstances, Saleh 3
remains “convicted” of a removable offense for federal 4
immigration purposes, viz. within the meaning of 8 U.S.C. § 5
1227(a)(2)(A)(i) and the INA’s definition of “conviction,” 8 6
U.S.C. § 1101(a)(48)(A).6
7
This is a question of federal statutory interpretation. We 8
have previously observed that “[w]hether one has been ‘convicted’ 9
within the language of [federal] statutes is necessarily . . . a 10
question of federal, not state, law, despite the fact that the 11
predicate offense and its punishment are defined by the law of 12
the State.” United States v. Campbell, 167 F.3d 94, 97 (2d Cir. 13
1999) (alternations in original, citation omitted); cf. Dickerson 14
v. New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983) (holding 15
that in “the absence of a plain indication to the contrary, . . 16
. it is to be assumed when Congress enacts a statute that it does 17

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not intend to make its application dependent on state law” 1
(alterations in original, citation omitted)). 2
We review the BIA’s interpretation of the INA under the 3
familiar two-step analysis set forth in Chevron, 467 U.S. 837. 4
See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). First, 5
we determine whether the provision in question is ambiguous; 6
“[i]f the intent of Congress is clear, that is the end of the 7
matter; for the court, as well as the agency, must give effect to 8
the unambiguously expressed intent of Congress.” Chevron, 467 9
U.S. at 842-43. If, however, “the statute is silent or ambiguous 10
with respect to the specific issue, the question for the court is 11
whether the agency’s answer is based on a permissible 12
construction of the statute,” and thus entitled to deference. 13
Id. at 843. 14
Turning to the first step of this analysis, we conclude that 15
Congress’ intent on the treatment of vacated or amended 16
convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous. Saleh 17
was deemed removable because, inter alia, he is an alien who “is 18
convicted of a crime involving moral turpitude,” 8 U.S.C. § 19
1227(a)(2)(A)(i), and conviction is defined, in pertinent part, 20
as “a formal judgment of guilt of the alien entered by a court,” 21
8 U.S.C. § 1101(a)(48)(A). This language permits a spectrum of 22
possible interpretations. On one end of the spectrum, Congress 23
may have intended that where an alien receives any type of post- 24

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conviction relief -- either through an amendment nunc pro tunc, 1
an expungement, or some other remedy -- the immigration law 2
should treat the conviction as if it never occurred, regardless 3
of the reason for the relief. Under this view, the expungement 4
means that the defendant no longer “is convicted of [the 5
original] crime” and there is no longer any “formal judgment of 6
guilt of the alien entered by a court.” On the other end of the 7
spectrum, Congress may have intended that no post-conviction 8
relief whatsoever should have any effect on whether an alien 9
stands “convicted” of a removable offense, again, regardless of 10
the reason for the relief. Or, Congress may have intended some 11
middle position: that certain types of post-conviction relief 12
would affect an alien’s “conviction” status under the INA, but 13
others would not, depending upon the reason for the relief. 14
Neither the relevant statutory language nor legislative history 15
allows us to conclude that any of these interpretations 16
represents Congress’ unambiguous intent. See, e.g., Pinho v. 17
Gonzales, 432 F.3d 193, 206 (3d Cir. 2005); Murillo-Espinoza v. 18
INS, 261 F.3d 771, 774 (9th Cir. 2001). 19
Accordingly, we turn to Chevron’s second step, which directs 20
us to consider whether the BIA adopted “a permissible 21
construction of the statute.” Chevron, 467 U.S. at 843. In 22
making this assessment, “[i]t is not necessary that we conclude 23
that the agency’s interpretation of the statute is the only 24

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7 Although Saleh claims that the agency erred as a matter
of law in reaching its decision, we will construe his argument
as urging that the BIA’s interpretation was unreasonable.
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permissible interpretation, nor that we believe it to be the best 1
interpretation of the statute.” Skubel v. Fuoroli, 113 F.3d 330, 2
336 (2d Cir. 1997) (citing Chevron, 467 U.S. at 843 n.11). 3
Rather, to affirm the BIA’s determination, we need only conclude 4
that the agency’s interpretation is “‘rational and consistent 5
with the statute.’” Protection & Advocacy for Persons with 6
Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 7
124 (2d Cir. 2006) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 8
(1990)). 9
The BIA has adopted an interpretation of 8 U.S.C. § 10
1101(a)(48)(A) that distinguishes between convictions vacated on 11
the merits, which the BIA does not treat as “convictions” within 12
the meaning of the provision, and convictions vacated for other 13
reasons, including to avoid immigration hardships, which the BIA 14
continues to treat as “convictions.” Because Saleh’s conviction 15
fell into the latter category, the BIA concluded that the nunc 16
pro tunc amendment did not affect his conviction status for 17
removability purposes. For reasons to be discussed, we reject 18
Saleh’s contention that the interpretation is unreasonable.7
19
Over the last 20 years, there has been a consistent 20
broadening of the meaning of “conviction” in the INA. Until 21
1996, the INA did not contain a statutory definition of 22

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“conviction,” and for most of that time, the BIA generally took 1
the position that an alien whose conviction is vacated or 2
expunged under state law no longer stood convicted of a removable 3
offense for federal immigration purposes. See Matter of Ozkok, 4
19 I. & N. Dec. 546, 550-52 (BIA 1988). In 1988, the BIA 5
acknowledged, albeit in a somewhat different context from the 6
instant case, that its own prior approach was unduly deferential 7
to state definitions of conviction and had thus frustrated 8
congressional intent: “[F]orm has been placed over substance, and 9
aliens who are clearly guilty of criminal behavior and whom 10
Congress intended to be considered ‘convicted’ have been 11
permitted to escape the immigration consequences normally 12
attendant upon a conviction.” Id. at 551. Accordingly, the BIA 13
attempted in Ozkok to remedy the problem, adopting a broader test 14
for determining whether a conviction existed for federal 15
immigration purposes. 16
But Congress was of the opinion that the BIA had not gone 17
far enough. See Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir. 18
2006) (noting that “Congress subsequently indicated its 19
dissatisfaction with the Ozkok test when it amended the INA to 20
change the definition of conviction in 1996”). Congress 21
therefore codified, for the first time, a definition of the term 22
“conviction” in the INA. See 8 U.S.C. § 1101(a)(48)(A) (1996); 23
see also Francis, 442 F.3d at 140. This definition was 24

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specifically intended to broaden the definition of “conviction” 1
under the INA that had been previously used by the BIA. See 2
Francis, 442 F.3d at 139 (noting that “[t]he applicable 3
definition of ‘conviction’ was narrower [prior to Congress’ 4
intervention] than it is today”). In particular, Congress 5
expanded the Ozkok definition by including convictions where the 6
adjudication of guilt was deferred. As the Conference Report on 7
the amendments explained, “there exist[s] in the various states 8
a myriad of provisions for ameliorating the effects of a 9
conviction. As a result, aliens who have clearly been guilty of 10
criminal behavior and whom Congress intended to be considered 11
“convicted” have escaped the immigration consequences normally 12
attendant upon a conviction.” H.R. Conf. Rep. No. 104-828 at 13
224. 14
Interpreting the new definition, the BIA identified two 15
primary aims that it believed Congress sought to accomplish: to 16
focus the conviction inquiry on the “original determination of 17
guilt” and to “implement a uniform federal approach.” Matter of 18
Roldan, 22 I. & N. Dec. 512, 521-22 (BIA 1999). Relying on these 19
rationales, the BIA, in a series of cases culminating in Matter 20
of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other 21
grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), 22
further expanded the definition of conviction beyond the 23
particular procedural mechanism considered by Congress in its 24

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1996 amendments to the INA. In Pickering, the BIA concluded 1
that Congress objected generally to many state actions allowing 2
aliens to “escape the immigration consequences normally attendant 3
upon a conviction,” H.R. Conf. Rep. No. 104-828 at 224, and that 4
Congress did not intend to allow an alien to escape those 5
consequences by means of a state vacatur that was not on the 6
merits. Pickering gave effect to this objective by holding that 7
the federal immigration consequences of all post-conviction 8
relief will be determined by considering the State court’s 9
motivation in granting the relief, e.g., avoiding immigration 10
hardships, recognizing the defendant’s rehabilitation, or a 11
substantive or procedural defect in the predicate conviction. 12
Specifically, the BIA held that 13
[T]here is a significant distinction between convictions 14
vacated on the basis of a procedural or substantive 15
defect in the underlying proceedings and those vacated 16
because of post-conviction events, such as 17
rehabilitation or immigration hardships. Thus, if a 18
court with jurisdiction vacates a conviction based on a 19
defect in the underlying criminal proceedings, the 20
respondent no longer has a “conviction” within the 21
meaning of section 101(a)(48)(A) [8 U.S.C. § 22
1101(a)(48)(A)]. If, however, a court vacates a 23
conviction for reasons unrelated to the merits of the 24
underlying criminal proceedings, the respondent remains 25
“convicted” for immigration purposes. 26
27
Id. at 624. 28
Relying in part on this reasoning, the BIA in the appeal now 29
before us concluded that Saleh remained convicted of the original 30
removable offense because the amendment to Saleh’s judgment of 31

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conviction was obtained solely to avoid “immigration hardships” 1
and not to remedy a procedural or substantive defect in the 2
underlying proceedings. 3
The BIA’s interpretation in both Pickering and the instant 4
case is reasonable. For one thing, the interpretation is 5
entirely consistent with Congress’ intent in enacting the 1996 6
amendments to broaden the definition of conviction and advances 7
the two purposes earlier identified by the BIA: it focuses on the 8
original attachment of guilt (which only a vacatur based on some 9
procedural or substantive defect would call into question) and 10
imposes uniformity on the enforcement of immigration laws. 11
Second, from a practical perspective, while state convictions are 12
a useful way for the federal government to identify individuals 13
who, because of their criminal history, may be appropriate for 14
removal, there will still remain individuals who are guilty of 15
“morally turpitudinous” conduct, see Michel, 206 F.3d at 263, and 16
therefore suitable for removal even though they do not have a 17
still-standing conviction for a removable offense under state 18
law. Cf. Dickerson, 460 U.S. at 120 (noting that state 19
convictions “provide a convenient, although somewhat inexact, way 20
of identifying ‘especially risky people’” and that “[t]here is no 21
inconsistency in the refusal of Congress to be bound by 22
postconviction state actions . . . that vary widely from State to 23
State and that provide less than positive assurance that the 24

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8 We note that we have already embraced, in a slightly
different context, approximately the BIA’s standard in
Pickering. In Campbell, we held that the district court could
apply a sentencing enhancement called for by federal law for a
vacated state aggravated felony conviction because
“[defendant’s] conviction was not reversed, and the vacatur
order was not based on any showing of innocence or on any
suggestion that the conviction had been improperly obtained.”
167 F.3d at 98. Although Campbell is not controlling in this
case, we continue to believe that this standard, which the BIA
has substantially adopted and applied to the removal context in
Pickering, is consistent with congressional intent.
-16-
person in question no longer poses an unacceptable risk of 1
dangerousness.” (internal citations omitted)). Under Pickering, 2
these individuals will remain removable, as Congress intended. 3
Particularly as applied to post-conviction relief granted to 4
aid the defendant in avoiding immigration hardship, we think the 5
BIA’s position eminently reasonable: When a conviction is amended 6
nunc pro tunc solely to enable a defendant to avoid immigration 7
consequences, in contrast to an amendment or vacatur on the 8
merits, there is no reason to conclude that the alien is any less 9
suitable for removal.8
10
For this reason, we find particularly instructive the 11
settled law of our sister circuits, which holds that the BIA has 12
reasonably concluded that an alien remains convicted of a 13
removable offense for federal immigration purposes when a state 14
vacates the predicate a conviction pursuant to a rehabilitative 15
statute. See, e.g., Pickering, 465 F.3d at 266; Alim v. 16
Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Pinho, 432 17

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F.3d at 195; Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 1
2005); Cruz-Garza, 396 F.3d at 1129; Resendiz-Alcaraz v. 2
Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo- 3
Espinoza, 261 F.3d at 774; Herrera-Inirio v. INS, 208 F.3d 299, 4
305 (1st Cir. 2000). Saleh attempts to distinguish away this 5
body of law by arguing that his vacatur, by contrast, had 6
absolutely nothing to do with rehabilitation. We agree, of 7
course, but his argument proves too much. It would make little 8
sense for federal law to ignore vacaturs for rehabilitation, 9
which, at least in some cases, reflect a measured judgment that 10
the defendant is rehabilitated, but recognize vacaturs that 11
solely aim to help the defendant avoid adverse immigration 12
consequences. 13
In light of the foregoing, we join our sister circuits in 14
holding that the BIA’s conclusion -- that an alien remains 15
convicted of a removable offense for federal immigration purposes 16
when the predicate conviction is vacated simply to aid the alien 17
in avoiding adverse immigration consequences and not because of 18
any procedural or substantive defect in the original conviction 19
-- is a permissible construction of the statute and is therefore 20
entitled to deference. See, e.g., Sanusi v. Gonzales, 474 F.3d 21
341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on 22
the ground that the state court’s vacation of Sanusi’s conviction 23
was ineffective for immigration purposes because it was done 24

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9 We note that our holding in this case is limited to post-
conviction relief granted solely to avoid adverse immigration
consequences and not because of any procedural or substantive
defect in the original conviction, and we leave for another day
the effect of post-conviction relief granted for other reasons.
-18-
solely for the purpose of ameliorating the immigration 1
consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 2
(6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 3
2005).9
4
2. Does the BIA’s construction of 8 U.S.C. § 5
1101(a)(48)(A) violate the full faith and credit 6
statute? 7
8
We turn now to Saleh’s additional argument that the 9
interpretation the BIA adopted, and which we here deem 10
reasonable, violates the statutory analogue of the full faith and 11
credit clause. See 28 U.S.C. § 1738 (federal courts must give 12
full faith and credit to state acts, records, and judicial 13
proceedings); cf. U.S. Const. art. IV, § 1. We agree with the 14
First Circuit that “section 1101(a)(48)(A) does not infract 15
applicable principles of full faith and credit,” Herrera-Inirio, 16
208 F.3d at 307, because “neither the constitutional clause nor 17
its statutory analogue (binding federal courts) purports to 18
prevent federal legislative authorities from writing federal 19
statutes that differ from state statutes or from attaching, to 20
words in a federal statute, a meaning that differs from the 21
meaning attached to the same word when used in a statute enacted 22

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by a state,” Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) 1
(Breyer, J.). 2
Similarly, we have held that the full faith and credit 3
statute does not prevent a federal court from taking cognizance 4
of a state youthful offender adjudication as a prior conviction 5
in sentencing even though the adjudication is not regarded as a 6
conviction under state law: 7
[T]he “principles of federalism and comity embodied in 8
the full faith and credit statute,” Growe v. Emison, 507 9
U.S. 25, 35, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), are 10
not endangered when a sentencing court, not questioning 11
the propriety of the state’s determination in any way, 12
interprets how to apply New York’s youthful offender 13
adjudications to a Guidelines analysis. . . . The 14
federal sentencing court is neither refusing to 15
recognize nor relitigating the validity of [defendant’s] 16
New York state judgment of conviction or his youthful 17
offender sentence. Instead, it is merely noticing and 18
acting upon the fact of [defendant’s] prior conviction.” 19
20
United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) 21
(internal citations omitted). Here, too, the BIA is simply 22
interpreting how to apply Saleh’s vacated State conviction for 23
receiving stolen property to the INA and is not refusing to 24
recognize or relitigating the validity of Saleh’s California 25
state conviction. The full faith and credit statute is not 26
thereby violated. 27
B. Did the BIA properly deny Saleh’s application for 28
cancellation of removal? 29
30
Finally, the BIA did not err in affirming the IJ’s denial of 31
Saleh’s application for cancellation of removal. The application 32

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10 After the filing of this opinion, it was brought to the
Court’s attention that the “stop-time” rule may not apply
retroactively to offenses committed before April 1, 1997, the
effective date of the Illegal Immigrant and Immigrant
Responsibility Act of 1996. That issue is presently before
another panel of this Court but was never presented here by
Saleh. Accordingly, we deem Saleh to have waived that argument.
See Yueqing Zhang, 426 F.3d at 542 n.1. Nothing in this opinion
should be construed as deciding whether the “stop-time” rule
applies retroactively.
-20-
was untimely. In any event, Saleh was ineligible for the relief 1
because he does not satisfy the provision’s seven-year continuous 2
residence requirement, 8 U.S.C. § 1229b(a)(2). His conviction of 3
a removable offense (which, for the above reasons, stands for 4
federal immigration purposes) triggers the “stop-time rule,” 8 5
U.S.C. § 1229b(d)(1), under which an alien’s continuous residency 6
or physical presence ends, for purposes of cancellation of 7
removal, on the date he commits a qualifying offense or on the 8
date a notice to appear is filed. Accordingly, Saleh’s period of 9
continuous residence ended, at the very latest, in 1993, after 10
only three years in the country. See generally Tablie v. 11
Gonzales, 471 F.3d 60, 61-62 (2d Cir. 2006).10
12
III. CONCLUSION 13
We have considered all of Saleh’s arguments on appeal and 14
find them to be without merit. For the foregoing reasons, we 15
deny Saleh’s petition for review. The pending motion for a stay 16
of removal in this case is denied as moot. 17

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