Schultz v. Gonzales, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SAMUEL SCHULTZ,

Petitioner,

v.

ALBERTO R. GONZALES,

Attorney General,

Respondent.

No. 06-9546

(No. A38-602-964)

(Petition for Review)

ORDER AND JUDGMENT
name="txt*">(*)

Before PORFILIO, BALDOCK,

and EBEL, Circuit Judges.

Samuel Schultz seeks review of a Board of Immigration Appeals (BIA)

decision that ordered him removed to India under 8 U.S.C. 1227(a)(2)(A)(iii)

for being an alien convicted of an aggravated felony theft offense as defined by

8 U.S.C. 1101(a)(43)(G). We have jurisdiction under 8 U.S.C. 1252(a)(2)(D), and we deny the petition for review.

I. Background

Mr. Schultz is a native and citizen of India. He was born there in 1981,

but became a lawful permanent resident of the United States in 1985 when he

was adopted by an American citizen. He never applied for U.S. citizenship. In

2000, Mr. Schultz pleaded guilty to attempting to receive or transfer a stolen

vehicle, an offense classified as a felony under Utah law. Then in 2001, Mr.

Schultz pleaded guilty to receiving a stolen motor vehicle, also a felony under

Utah law. Following these convictions, Mr. Schultz received a Notice to Appear

before an Immigration Judge (IJ) to answer to charges of removal as an alien

convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii). At his

removal hearing, Mr. Schultz sought cancellation of removal, asylum, restriction

on removal, and protection under the Convention Against Torture (CAT). The IJ

denied all forms of relief and ordered Mr. Schultz removed to India. Mr. Schultz

appealed, and the BIA reversed.

The BIA found that the evidence relied upon by the government to prove

Mr. Schultz's convictions was not properly certified as required by 8 C.F.R. § 1003.41. Consequently, the BIA remanded the case to the IJ who, after the

government submitted new records of Mr. Schultz's convictions, again ordered

him removed. Mr. Schultz appealed to the BIA a second time, arguing once

again that the newly admitted conviction records were also improperly certified.

The BIA rejected this argument, however, and affirmed the IJ's removal order.

Mr. Schultz subsequently petitioned this court for review. In his petition,

he contends that: (1) the government failed to establish his removability because

the evidence of his convictions was not properly certified; (2) the crime of

receiving or transferring a stolen motor vehicle does not qualify as an aggravated

felony theft offense under § 1101(a)(43)(G); and (3) the IJ erred in finding him

ineligible for asylum and cancellation of removal.II. Discussion

Our threshold inquiry is whether we have jurisdiction to consider this

petition. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir. 2005)

("We must first address a threshold jurisdictional question before turning to the

merits."). The REAL ID Act added 8 U.S.C. 1252(a)(2)(D) to provide us with

jurisdiction over constitutional claims or questions of law raised in a petition to

review a final order of removal. Diallo v. Gonzales, 447 F.3d 1274, 1281

(10th Cir. 2006). Here, Mr. Schultz challenges his classification as an

aggravated felon by contending the convictions on which his status was based

were not properly certified under 8 U.S.C. 1229a(c)(3)(B) and (C), or

8 C.F.R.

§§ 287.6 and 1003.41. This presents the legal question of whether Mr.

Schultz

was removable under § 1227(a)(2)(A)(iii), which we now have jurisdiction to

consider. Vargas v. Dep't of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir.

2006). We therefore turn to the merits of the petition, reminded that we review

the BIA's legal determinations de novo, Ferry v. Gonzales, 457 F.3d 1117, 1126

(10th Cir. 2006).

A. Certification of Conviction Records

Mr. Schultz first claims that the conviction records upon which the IJ

based its removal order were not properly certified. These records were admitted

as Exhibits 6 and 7. Exhibit 6 is an eleven-page copy of a conviction record

indicating that Mr. Schultz pleaded guilty to receiving or transferring a stolen

vehicle. Admin. R. at 263-73. Of the eleven pages, only pages one, two, and

eleven bear a seal from the Utah state court. The other exhibit, Exhibit 7, is a

two-page copy of Mr. Schultz's conviction record indicating that he pleaded

guilty to attempting to receive or transfer a stolen vehicle. Id. at 261-62. Both

pages of that document are affixed with a seal from the Utah court. Citing

8 U.S.C. 1229a(c)(3)(B) and (C), and 8 C.F.R.

§§ 287.6 and 1003.41,

Mr. Schultz contends that to establish his removability for having been convicted

of an aggravated felony, the government must submit "either original documents

or records or certified copies of official documents or records."
name="txt1a">(1) Aplt. Br. at 12.

Asserting that the government failed to provide such documents, Mr. Schultz

concludes that the evidence against him was insufficient to sustain the agency's

removal order.

Initially, we note that contrary to Mr. Schultz's representations, he did not

challenge the admissibility of Exhibit 7 before the BIA. Indeed, as the BIA

stated in its decision, Mr. Schultz "ma[de] no argument as to the authenticity or

proper certification of Exhibit 7." Admin. R. at 3. Because he failed to raise this

issue before the BIA, it is abandoned and we cannot consider it. See Akinwunmi

v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) ("The failure to raise

an issue on appeal to the Board constitutes failure to exhaust administrative

remedies with respect to that question and deprives the Court of Appeals of

jurisdiction to hear the matter." (quotation omitted)). Moreover, as the BIA

recognized, Mr. Schultz's status as an aggravated felon was demonstrated by

Exhibit 7, which was sufficient to establish his removability.

Nonetheless, turning to Exhibit 6, we see that the first page is a copy of

Mr. Schultz's actual judgment and conviction. This record bears both a seal and

signed attestation that satisfy both regulations. See 8 C.F.R.

§ 287.6(a) ("an

official record . . . shall be evidenced . . . by a copy attested by the official

having legal custody of the record"); id., § 1003.41(b) (permitting the

admission

of conviction records that comply with the requirements of § 287.6(a)). This

page also satisfies 8 U.S.C. 1229a(c)(3)(B)(i), which provides that a

certified

copy of an official record of judgment and conviction constitutes proof of a

criminal conviction. To the extent Mr. Schultz suggests that each page of Exhibit

6 must be certified, we note that the first, second, and last pages of the exhibit

clearly bear a state district court seal. See Admin. R. at 263-64, 273. Moreover,

the last page also bears an inclusive attestation, signed and dated by the clerk of

court, certifying "that the foregoing is a true and correct copy of an original

document." Id. at 273. Given these and the other authenticating marks

throughout Exhibit 6, we are satisfied that Mr. Schultz's conviction record was

properly certified under the requirements of 8 U.S.C. 1229a(c)(3)(B), as

well as

8 C.F.R. §§ 287.6 and 1003.41. Accordingly, we conclude that the agency's

reliance on both Exhibits 6 and 7 was proper.

B. Aggravated Felony

Mr. Schultz next argues that the crime of receiving or transferring a stolen

motor vehicle does not qualify as an aggravated felony theft offense under

§ 1101(a)(43)(G). Our jurisdiction to consider this argument is foreclosed,

however, because Mr. Schultz failed to raise the issue before the BIA and thereby

failed to exhaust his administrative remedies. See Akinwunmi, 194 F.3d at 1341.

In any event, our precedent contradicts Mr. Schultz's position. In United States

v. Vasquez-Flores, 265 F.3d 1122, 1124-25 (10th Cir. 2001), we expressly held

that the crime of receiving or transferring a stolen motor vehicle constitutes an

aggravated felony theft offense because, under Utah law, it entails a knowing

exercise of control over another's property without consent. Although

Vasquez-Flores is a criminal case, its classification of this crime as an aggravated

felony was based on the phrase "theft offense" under § 1101(a)(43)(G), and the

elements of the offense as defined by Utah law. See id. (examining and adopting

the reasoning of Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001)).

Hence, Mr. Schultz's contention is without merit.

C. Ineligibility for Asylum and Cancellation of Removal

Lastly, Mr. Schultz contends the IJ erred in finding him ineligible for

asylum and cancellation of removal. Maintaining that his convictions are not

qualifying aggravated felonies, Mr. Schultz argues that his claims for asylum and

cancellation of removal ought to be allowed to proceed. But as we have already

held, the crime of receiving or transferring a stolen motor vehicle is an

aggravated felony theft offense under § 1101(a)(43)(G). We therefore conclude

the IJ correctly determined that Mr. Schultz was not eligible for either form of

relief. See 8 U.S.C. 1229b(a)(3) and 1158(b)(2).

III. Conclusion The petition for review is DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. After examining the briefs and appellate

record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1. Because there is no indication that

the records were submitted by electronic

means, 8 U.S.C. 1229a(c)(3)(C) is inapplicable.

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