John Schedin v. Ortho-McNeil-Janssen

United States Court of Appeals
For the Eighth Circuit
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No. 12-1538
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Rita Yanovna Brikova,
also known as Rita Yanovna Job
lllllllllllllllllllllAppellant
v.
Eric H. Holder, Jr.,
Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 16, 2012
Filed: November 7, 2012
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Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.

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Rita Job, a native and citizen of Moldova, petitions for review of a final order1
of removal of the Board of Immigration Appeals (“BIA”), affirming the decision of
the immigration judge (“IJ”) to deny her applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). She also argues
that the BIA violated her equal protection rights in denying her petition to terminate
removal proceedings under the Federal First Offender Act (“FFOA”). Job contends
that if the criminal conviction giving rise to her removal had occurred in federal court
rather than state court, she would have been eligible for FFOA expungement and
would not be subject to removal proceedings. For the reasons discussed below, we
deny Job’s petition.
I. BACKGROUND
Job entered the United States at age fifteen with her parents and older sister in
1993 after her parents were granted refugee status from Moldova. She was granted
lawful permanent resident status in 1994. In 1997, a Minnesota state court
conditionally convicted Job of possession of cocaine, a controlled substance. The
court sentenced her to a period of up to three years’ probation, eighty hours of
community service, and a $150 fine. After Job served two years’ probation, the court
dismissed the case in July 1999 without an adjudication of guilt. In October 2006,
the same state court entered a new order, citing unspecified “errors in the record
arising from oversight or omission.” The 2006 order and 1997 order are identical,
except that the 2006 order changed the term of probation and stated that Job “was
placed on probation for a period of not more than one year.”
On August 27, 2003, following a visit to relatives in Russia, Job sought
admission to the United States at O’Hare International Airport in Chicago. Based on
her 1997 controlled substance conviction, immigration authorities issued a Record
Job’s maiden name—and name at the time these removal proceedings1
commenced—was Rita Yanovna Brikova. This opinion, however, uses her current
name.
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of Inadmissible Alien and a Notice to Appear, charging that she was removable as an
alien convicted of a controlled substance offense under the Immigration and
Nationality Act (“INA”). See 8 U.S.C. § 1182(a)(2)(A)(i)(II). On April 26, 2005, the
IJ held a hearing on Job’s applications for asylum, withholding of removal, and
protection under the CAT. The IJ denied all three applications the same day. The
BIA agreed with the IJ that Job’s cocaine conviction constituted an aggravated
felony, precluding potential asylum relief. The BIA further concluded that there was
no support for Job’s claims that she would face persecution or torture if she returned
to Moldova. Accordingly, the BIA dismissed Job’s appeal on October 31, 2006.
On November 29, 2006, Job filed a motion to reopen her removal proceedings
based on her then-recent marriage to a U.S. citizen and a claim of eligibility for an
adjustment of immigration status. She also renewed her argument that her conviction
for cocaine possession did not constitute an aggravated felony offense barring asylum
relief and also argued that the conviction did not make her ineligible for an
adjustment of status. The BIA granted reopening and remanded the case to the IJ on
March 9, 2007. In August 2007, Job filed a motion to terminate her removal
proceeding based on her contention that her cocaine possession conviction did not
render her inadmissible, but the IJ denied this motion. Job also filed new applications
for asylum, withholding of removal, and CAT protection. The IJ held a hearing on
these applications on April 24, 2009.
Among the evidence presented at the 2005 proceeding and on remand in 2009,
Job testified that while in Moldova she suffered various forms of persecution based
on her Jewish ethnicity. For example, Job told the IJ that her kindergarten teacher
called her “all kind[s] of racial slurs” and once threw a chessboard at her, cutting her
and leaving a scar above one of her eyes. Job also testified that her family members
suffered other forms of discrimination while in Moldova. She stated that her older
sister was denied admission to the college of her choice because she was Jewish, that
her father was discriminated against in college and in the job market, and that her
mother could not obtain government-subsidized housing until she changed her
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married Jewish surname, “Vasserman,” back to her maiden Russian surname,
“Brikova.” Job also stated that friends and family in Moldova had advised her to stay
out of the country because of how Jewish people were being treated. She also
expressed fear that she would be beaten, robbed, kidnapped, or killed if she returned
and stated that she would have trouble finding a job in Moldova. In total, the IJ
considered more than two dozen country reports on Moldova from various
governments and international organizations, including a report by the U.S. State
Department, which generally indicated that Jewish residents of Moldova did not face
discrimination either by the state or by individuals. Based on this evidence, the IJ
again denied Job’s applications for asylum, withholding of removal, and CAT
protection. The BIA dismissed Job’s appeal in February 2012.
In her petition for review, Job initially challenges the BIA’s decision denying
her petition to terminate removal proceedings pursuant to the FFOA. Under the
FFOA, if a person is found guilty of certain federal controlled substance offenses and
has not previously been subject to disposition under the FFOA, the court may place
that person on probation for a term of not more than one year without entering a
judgment of conviction. 18 U.S.C. § 3607(a). In general, convictions expunged
under the FFOA do not carry future legal consequences. See id. § 3607(b)
(explaining that a conviction expunged under the FFOA “shall not be considered a
conviction for the purpose of a disqualification or a disability imposed by law upon
conviction of a crime, or for any other purpose”). Job contends that if she had been2
We note, however, that subsequent to the enactment of the FFOA, Congress2
revised the definition of “conviction” for the purposes of the INA. See 8 U.S.C.
§ 1101(a)(48)(A). As a result, it is an unsettled question whether aliens whose
convictions have been expunged under the FFOA have convictions for the purposes
of immigration law. See Vasquez-Velezmoro v. INS, 281 F.3d 693, 697 (8th Cir.
2002). Although we have not squarely addressed the issue, we need not decide it
here. Job did not receive relief pursuant to the FFOA, so for the purposes of this
opinion, we will assume that convictions expunged by the FFOA are not convictions
for immigration purposes. See id.
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convicted in federal rather than state court, she would have been eligible for FFOA
expungement. She argues that this difference in treatment between federal and state
court defendants violates her equal protection rights. In her petition, Job also argues
that the BIA erred in denying her applications for asylum, withholding of removal,
and CAT protection.
II. DISCUSSION
We first must determine whether this court has jurisdiction to consider this
petition. Congress has ordered that “no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in section 1182(a)(2).” 8 U.S.C.
§ 1252(a)(2)(C). Among other convictions, 8 U.S.C. § 1182(a)(2) includes
convictions for “a violation of . . . any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance.” 8 U.S.C. § 1182(a)(2)(i)(II).
This provision, sometimes referred to as the “criminal alien bar,” precludes this
court’s review of the BIA’s decision on Job’s applications for asylum, withholding
of removal, and CAT protection, save for questions of law or constitutional claims.
See 8 U.S.C. § 1252(a)(2)(C)-(D); Costanza v. Holder, 647 F.3d 749, 753 (8th Cir.
2011). This court has held, however, that despite the criminal alien bar, it “has
jurisdiction to determine any preliminary jurisdictional issues,” and this jurisdiction
includes the ability to “consider whether [a] petitioner is removable because of [a]
conviction.” Vasquez-Velezmoro, 281 F.3d at 695-96. Specifically, this court has
held that it has jurisdiction to consider equal protection challenges to the FFOA. See
id.
Nonetheless, we conclude that Job’s conviction subjects her to removal
because her equal protection challenge cannot succeed. As an alien, Job is not a
member of a suspect class, or otherwise subject to heightened scrutiny. See id. at 697
(citing Plyler v. Doe, 457 U.S. 202 (1982)). Therefore, her equal protection claim is
analyzed under the deferential rational-basis standard. Id. Under rational basis
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review, “[t]he government’s different treatment of persons will ‘be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.’” Id. (quoting FCC v. Beach
Commnc’ns, Inc., 508 U.S. 307, 313 (1993)).
The Government argues that there is a rational basis for treating Job differently
than FFOA defendants because she received a longer sentence than the law allows for
FFOA expungement, and, as such, she is not similarly situated to those defendants.
In making this argument, the Government points to the original 1997 order, which
sentenced her to up to three years’ probation, and to the two-year probation term she
actually served. The Government argues that because an alien must be sentenced to
no more than one year of probation to be eligible for FFOA expungement, Job is not
similarly situated to these defendants. Job argues that the revised 2006 order, which
states a revised probationary term of “not more than one year,” controls and is entitled
to full faith and credit before this court. We question whether we should credit an
order correcting ex post a probationary term that already has been served, citing only
an unspecified clerical error. The Government, however, does not directly challenge
the validity of the 2006 order, and we need not reach the issue. Even if this court
assumes Job is similarly situated to FFOA defendants, her equal protection claim
nonetheless fails because there are multiple potential rational bases for distinguishing
between federal and state defendants.
In Vasquez-Velezmoro, the only case in which we have considered an equal
protection challenge to the FFOA, we held that an alien who was sentenced to ten
years’ probation by a Texas state court for possession of a controlled substance was
not similarly situated to aliens who received FFOA expungement. See id. at 695-97.
We went on to state that “[t]o the extent these defendants are similarly situated . . . we
still see a rational basis for treating differently state and federal convictions that are
expunged.” Id. at 698. For example, the distinction might have been based on
Congress’ greater familiarity with federal prosecution, which allows it to better
“control the pool of aliens who will be eligible for immigration relief via the FFOA,
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than it can with state defendant aliens rehabilitated through a variety of [state]
statutes.” Id.; accord Nunez-Reyes v. Holder, 646 F.3d 684, 689 (9th Cir. 2011) (en
banc) (“Familiar with the operation of the federal criminal justice system, Congress
could have thought that aliens whose federal charges are dismissed under the FFOA
are unlikely to present a substantial threat of committing subsequent serious crimes.
By contrast, Congress may have been unfamiliar with the operation of state schemes
that resemble the FFOA.” (quoting Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir.
2003))); Wellington v. Holder, 623 F.3d 115, 121 (2d Cir. 2010); Resendiz-Alcaraz
v. U.S. Attorney Gen., 383 F.3d 1262, 1272 (11th Cir. 2004); Madriz-Alvarado v.
Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004); cf. Elkins v. Comfort, 392 F.3d 1159,
1163 (10th Cir. 2004) (reaching the same conclusion with respect to a foreign
conviction).
Alternatively, as this court has noted, Congress could have been “adopting
legislative reform of its treatment of convicted aliens ‘one step at a time, addressing
itself to the phase of the problem which seems most acute to the legislative mind.’”
Vasquez-Velezmoro, 281 F.3d at 698 (quoting Williamson v. Lee Optical of Okla.,
Inc., 348 U.S. 483, 489 (1955)). Congress also might have been concerned that “state
criminal justice systems, under the pressure created by heavy case loads, might permit
dangerous offenders to plead down to simple possession charges and take advantage
of those state schemes to escape what is considered a conviction under state law.”
Acosta, 341 F.3d at 227; accord Nunez-Reyes, 646 F.3d at 689-90; Wellington, 623
F.3d at 121-22; Resendiz-Alcaraz, 383 F.3d at 1272. Other circuits also have
suggested that in the interest of uniformity, Congress could have decided that it
would not recognize any state expungements rather than adopt a piecemeal approach
where persons convicted in states that permit expungement would be eligible for
immigration relief, while those who lived in states without expungement schemes
would not. Nunez-Reyes, 646 F.3d at 690; see also Ramos v. Gonzales, 414 F.3d 800,
806 (7th Cir. 2005) (“State laws vary considerably, and the BIA (as well as Congress)
reasonably might have thought that the law should entitle only persons who actually
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have been charged and sentenced under the FFOA to leniency for immigration
purposes.”).
All of these reasons rationally explain the differing treatment given to aliens
with state-expunged convictions and aliens with FFOA-expunged convictions.
Accordingly, we reject Job’s equal protection challenge to her removal proceedings.
Finally, because Job’s challenge to the denial of her applications for asylum,
withholding of removal, and CAT protection all rest on factual determinations of the
IJ and BIA rather than on questions of law or constitutional claims, as noted above,
this court lacks jurisdiction to review those decisions. See 8 U.S.C. § 1252(a)(2)(C)-
(D); Costanza, 647 F.3d at 753. Thus, we dismiss those portions of Job’s petition for
lack of jurisdiction.
III. CONCLUSION
We conclude that Job’s equal protection challenge to the FFOA fails and that
we lack jurisdiction to review the BIA’s denial of her applications for asylum,
withholding of removal, and CAT protection. Therefore, we dismiss in part and deny
in part Job’s petition for judicial review.
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