4th & 11th Circuits on definition of conviction

Two federal courts of appeal have issued published decisions interpreting the definition of “conviction” found at INA § 101(a)(48)(A). The Fourth Circuit concluded that deferred adjudication in Virginia is not necessarily a conviction. /files/0/6/4/7/5/167292-157460/2009142732.pdf”>Mejia Rodriguez v. U.S. Dep’t of Homeland Security, No. 09-14273, 2011 WL 9573 (11th Cir. Jan. 4, 2011) (Carnes, Kravitch, and Siler).

In Crespo, an individual who overstayed a B-2 visa applied for adjustment of status through his U.S. citizen wife. To overcome some criminal history, Crespo sought a § 212(h) waiver (available for a single offense for possession of 30 grams or less of marijuana). Crespo had one marijuana possession conviction that he presumably conceded constituted a conviction (the opinion is unclear on this point). Another marijuana possession prosecution resulted in deferred adjudication, Virginia Code § 18.2-251, a result that Crespo argued does not fall within the INA’s definition of conviction. Crespo, No. 09-2214, slip op. at 3. The IJ determined that Crespo’s deferred adjudication was a conviction and the BIA affirmed. Crespo, No. 09-2214, slip op. at 3. As such, Crespo was deemed ineligible for the § 212(h) waiver and, by extension, adjustment.

The INA’s definition of conviction is usually considered to include deferred adjudication. Indeed, the legislative history is usually read to suggest that Congress adopted a statutory definition in 1996 for the very purpose of including deferred adjudications within the definition of conviction.

Virginia’s deferred adjudication statute, however, is unusual in that it allows a state court to defer adjudication even when a criminal defendant pleads not guilty to possession of marijuana. Crespo, No. 09-2214, slip op. at 5-6. “After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation.” Crespo, No. 09-2214, slip op. at 6 (quoting Va. Code Ann. § 18.2-251). This is precisely what occurred in Crespo’s criminal proceedings. Crespo, No. 09-2214, slip op. at 6.

To determine whether Crespo’s not guilty plea followed by the trial judge’s finding of guilt fulfills the INA’s definition of conviction, the Fourth Circuit, in an opinion authored by Judge Shedd, turned to the second prong of that definition, INA § 101(a)(48)(A)(i), which “covers deferred adjudications ‘and requires the presence of additional elements.’” Crespo, No. 09-2214, slip op. at 6 (quoting Griffiths v. INS, 243 F.3d 45, 52 (1st Cir. 2001)). “Subsection (i) specifies five sufficient findings: a finding of guilt by a judge or jury (i.e., a trial), a plea of guilt, a plea of no contest, or an admission by the alien of facts sufficient to find guilt.” Crespo, No. 09-2214, slip op. at 6. According to the Fourth Circuit, this language requires that guilt be established through trial, plea, or admission. Crespo, No. 09-2214, slip op. at 7.

Nothing of the sort occurred in Crespo’s criminal proceeding. Crespo, No. 09-2214, slip op. at 6. Not only was he not found guilty by a judge or jury; he pleaded not guilty. Moreover, he did not “admit to any facts, let alone facts sufficient to warrant a finding of guilt.” Crespo, No. 09-2214, slip op. at 6. Had Crespo pleaded guilty the Fourth Circuit would likely have concluded that he was convicted for immigration purposes, but the bottom line is he did not plead guilty. Crespo, No. 09-2214, slip op. at 8. In this way, Crespo is probably of limited help to most individuals who receive a deferred adjudication.

Interestingly, the Fourth Circuit took an unnecessary jab at the IJ and BIA by explaining in a footnote that “it is far from clear that the BIA actually rendered an interpretation in this case.” Crespo, No. 09-2214, slip op. at 8 n.4. According to the Fourth Circuit, the IJ discarded Crespo’s argument in one sentence and the BIA merely stated its agreement with the IJ and attached a string of citations “none of which address the Virginia statute at issue in this case.” Crespo, No. 09-2214, slip op. at 8 n.4. This sounds to me like a backhanded description of the BIA as, at best, overworked and, at worst, lazy.

For its part, the Eleventh Circuit, in a per curiam opinion, addressed whether a 1986 state marijuana possession offense that “was disposed of by a ‘guilty plea, finding of guilty, and credit for time served’” constitutes a conviction for immigration purposes. Mejia Rodriguez, No. 09-14273, slip op. at 3. Mejia Rodriguez was trying to renew his TPS authorization, but had his application denied by USCIS because of this and a 1985 turnstile-jumping conviction that he conceded was a conviction for immigration purposes. Mejia Rodriguez, No. 09-14273, slip op. at 3.

“[B]ecause the state court did not expressly withhold adjudication” in the marijuana possession proceeding, the Eleventh Circuit panel determined that only the first prong of INA § 101(a)(48)(A) applies. Mejia Rodriguez, No. 09-14273, slip op. at 5. This prong defines a conviction as “a formal judgment of guilt of the alien entered by a court.” INA § 101(a)(48)(A). This analysis is significant in that the panel implies that the second prong of § 101(a)(48)(A) (the prong at issue in Crespo) only applies if the criminal court clearly expressed that it withheld adjudication.

In analyzing the first prong of § 101(a)(48)(A), the panel emphasized that the “formal judgment of guilt” requirement is not the same as “a formal adjudication” of guilt. Mejia Rodriguez, No. 09-14273, slip op. at 6. Other circuits, it went on, have turned to Federal Rule of Criminal Procedure 32(k)(1) for guidance on how to interpret the “formal judgment of guilt” requirement. Mejia Rodriguez, No. 09-14273, slip op. at 4 (citing Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009); Puello v. Bureau of Citizenship and Immigration Services, 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002)).

Analogizing to Rule
32(k)(1), the panel explained that “to establish a conviction for immigration purposes, a court must accept a guilty plea or jury verdict, make an adjudication, and impose a sentence.” Mejia Rodriguez, No. 09-14273, slip op. at 6. Since Mejia Rodriguez entered a guilty plea, the panel was left to determine whether the trial court’s finding of guilty constitutes adjudication and whether credit for time served is a sentence. Mejia Rodriguez, No. 09-14273, slip op. at 7.

In determining whether the trial court’s finding of guilty is “adjudication,” the Eleventh Circuit turned to Black’s Law Dictionary to define “adjudication” as “to resolve a dispute or decide a case.” Mejia Rodriguez, No. 09-14273, slip op. at 7. A resolution or decision occurs, the panel then suggested, where the proceeding has been finalized: “Thus, to determine whether there has been an adjudication, we look to the finality of the proceedings.” Mejia Rodriguez, No. 09-14273, slip op. at 7. Here, the panel concluded, “[t]he finding of guilt when coupled with some form of sentence—time served—brings finality to the case and thus establishes an adjudication.” Mejia Rodriguez, No. 09-14273, slip op. at 7.

The panel went on to determine that credit for time served is a punishment for purposes of INA § 101(a)(48)(A). Mejia Rodriguez, No. 09-14273, slip op. at 9-10. Consequently, Mejia Rodriguez was convicted of marijuana possession for immigration purposes, thus rendering him ineligible for TPS.