Chia-I Lui-Dix v. Holder

528 F. App'x 595
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 20, 2013
DocketNo. 12-2351
StatusPublished
Cited by1 cases

This text of 528 F. App'x 595 (Chia-I Lui-Dix v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chia-I Lui-Dix v. Holder, 528 F. App'x 595 (7th Cir. 2013).

Opinion

ORDER

After a court in Taiwan convicted her of using heroin, Chia-I Lui-Dix came to the United States on a student visa, married a U.S. citizen, and had a child here. In a petition for adjustment of status, however, Lui-Dix acknowledged her drug conviction. This led the Department of Homeland Security to determine that she was removable, and so it commenced these proceedings. An Immigration Judge concluded that the foreign drug conviction made her ineligible for adjustment of status and ordered her removed, and the Board of Immigration Appeals dismissed her appeal. She now petitions this court for review, arguing that the underlying Taiwanese proceeding lacked critical procedural safeguards, relied on questionable evidence, and thus could not be held against her. Foreign convictions, however, need not comply with every detail of U.S. procedure in order to be accepted for immigration purposes, and Lui-Dix has not demonstrated that her conviction in Taiwan was the product of such a fundamentally unfair process that it is subject to collateral attack in an immigration proceeding. Accordingly, we deny her petition for review.

I

Lui-Dix is a native and citizen of Taiwan. In 1996, she was convicted in the Taiwan Taichung District Court of using illegal drugs. Four years later, in 2000, she entered the United States on a student visa. She married Paul Dix, a U.S. citizen, and the couple had a child in 2008. After the marriage, Dix successfully petitioned to have his wife designated as an alien relative. At that point, Lui-Dix applied to adjust her status to that of a legal permanent resident, but her application was denied because of her Taiwanese criminal conviction. DHS then instituted proceedings to remove her on the ground that her drugrelated conviction rendered her inadmissible at the time of her entry. See 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(2)(A)(i).

According to a translated copy of the Taiwanese court’s decision, Lui-Dix and her second husband, Yu-Ping Lin (who died in prison), were convicted of violating Taiwan’s Drug Eradication Act after being tried jointly in front of a judge. Lui-Dix and Lin were represented by separate counsel at the trial, which lasted about 15 minutes. They did not have the right to question the chief of police, who was the sole witness at the trial. Lin confessed, however, to smoking heroin mixed with cigarettes daily and to possessing the 1.22 grams of heroin that the police had seized during a search of the couple’s home. Although Lui-Dix denied using drugs, the court credited the results of a urine test, conducted using the immunoassay and chromatography methods, which indicated that Lui-Dix had morphine in her system. Based on this positive result, the court wrote that “we can only acknowledge that [Lui-Dix] used the illegal drug one time” within the three days before the police searched her home. Though the court was not certain about the source of the morphine in her urine, it stated that “most [597]*597drug users use heroin. Rarely do they use morphine. Therefore, the court believes the illegal drug [Lui-Dix] used was heroin.” It concluded by noting that “[hjeroin is a drug listed in Article 2 of the Drug Eradication Act. By using this drug, the defendants committed the crime of drug use.... ” The court sentenced Lui-Dix to three years in prison; she served about a year of that sentence.

Lui-Dix contested her removability based on that conviction in a proceeding before an immigration judge. In her brief, she attacked as unreliable the urine tests used to convict her, and she argued that the evidence presented to the Taiwanese court would not have sufficed to support a guilty verdict under the reasonable-doubt standard. She also submitted the written opinion of a clinical chemist and director of a toxicology lab in Wisconsin, Dr. Joyce Liu Flanagan, who reviewed Lui-Dix’s urine test results and criticized the methods used to obtain them. Dr. Flanagan opined that the testers had relied on a “cutoff value” (that is, a concentration level of morphine in the urine above which the test is deemed positive) “too low to be meaningful in forensic cases” in the United States. At such low levels, Dr. Flanagan explained, morphine in the urine can come from legal sources such as prescription or non-prescription drugs containing morphine or from food containing poppy seeds. She also thought that the chromatography and immunoassay tests on which the Taiwanese court had relied were qualitative tests that were inferior to more advanced quantitative options. Lui-Dix’s conviction, Dr. Flanagan concluded, was based on the “false assumption that the presence of morphine in urine is conclusive evidence of a person’s use of morphine or heroin.”

The IJ rejected Lui-Dix’s arguments. He noted that her offense of conviction in Taiwan (unlawful use of heroin) would also be a crime in the United States. Even though the standard of proof in Taiwan appeared to be lower than the reasonable-doubt rule that would apply in the United States, the judge found that the procedures used to convict Lui-Dix were “comparable” to those used here, and that they were adequate to permit his reliance on the conviction. Declining to engage in an exhaustive examination of the evidence supporting that conviction, the IJ said that he was “simply not competent to look behind the judgment to the sufficiency of a foreign court’s conviction.” Because that conviction rendered Lui-Dix inadmissible at the time of her entry, the IJ denied her request for adjustment of status and gave her permission to depart voluntarily within 60 days.

Lui-Dix appealed to the BIA, which upheld the IJ’s decision. The Board too observed that the use of illegal drugs is criminal in the United States, and it held that it could rely on the Taiwanese conviction without considering the procedural adequacy of the trial. The Board also concluded that Lui-Dix’s conviction related to a controlled substance, for purposes of U.S. law. It treated the translated document from the Taiwanese court as analogous to a U.S. judge’s findings of fact and conclusions of law after a bench trial, and it did not second-guess the Taiwanese court’s decision to accept the scientific methodology used in the urine test. In addition, the Board noted that whether Lui-Dix actually used morphine or heroin was immaterial, because both are controlled substances for purposes of U.S. law. See 21 U.S.C. § 812. The Board ended by remanding the case to the IJ so that he could instruct Lui-Dix properly on the procedure for voluntary departure. Lui-Dix filed a timely petition for review with this court.

II

In her petition, Lui-Dix continues to maintain that her Taiwanese conviction [598]*598should not be considered for immigration purposes, because her trial was unfair and she was subjected to procedural protections that fell well short of U.S. standards. Although she has sharpened that argument somewhat before this court, as compared with her submission to the Board, we are satisfied that she properly exhausted this point. See Juarez v. Holder, 599 F.3d 560, 564 n. 3 (7th Cir.2010). Lui-Dix complains in particular about the joinder of her trial with that of her then-husband, the lack of a right to a jury, the absence of a right to cross-examine, the flawed scientific methods used for the urine test, and the insufficiency of the evidence to prove her guilt beyond a reasonable doubt.

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Bluebook (online)
528 F. App'x 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chia-i-lui-dix-v-holder-ca7-2013.