Viveiros v. Holder , 692 F.3d 1 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1535
CARLOS ALBERTO MARQUES VIVEIROS,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Matthew S. Cameron on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Terri
J. Scadron, Assistant Director, and Kathryn L. Deangelis, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
June 25, 2012
SELYA, Circuit Judge. The petitioner, Carlos Alberto
Marques Viveiros, is a Portuguese national. He seeks judicial
review of a final order of the Board of Immigration Appeals (BIA)
denying his motion to terminate removal proceedings and mandating
his deportation. After careful consideration of the question of
statutory interpretation that the petitioner raises, we deny his
petition.
The pertinent facts are easily summarized. The
petitioner was admitted into the United States in 1984 as a lawful
permanent resident. He settled in Massachusetts. Roughly a
quarter-century later, Massachusetts authorities charged him with
shoplifting, see Mass. Gen. Laws ch. 266, § 30A, and larceny, see
id. § 30(1). These charges arose out of separate crimes allegedly
committed at separate times and places.
The petitioner pleaded guilty to the shoplifting charge
in a Massachusetts state court and was fined $250. He pleaded
guilty to the larceny charge in the same court and was sentenced to
18 months of probation.
The shoplifting fine was never paid. Some five months
after the fine was imposed, a probation officer requested that it
be waived, and the court thereupon vacated it. According to the
docket, the ultimate disposition was a "guilty finding with no
fines or costs."
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In due course, the Department of Homeland Security (DHS)
commenced removal proceedings against the petitioner. The DHS
premised this action on the petitioner's convictions for two
independent crimes of moral turpitude. See 8 U.S.C.
§ 1227(a)(2)(A)(ii). The shoplifting and larceny convictions
comprise the two predicate convictions.
The petitioner appeared before an immigration judge (IJ).
He did not contest the DHS's assertion that shoplifting and larceny
are crimes of moral turpitude but, rather, moved to terminate the
removal proceedings on the ground that he was never "convicted" of
shoplifting within the meaning of the immigration laws. In
support, he relied upon the vacation of the fine that had
originally been imposed.
The IJ rejected the petitioner's argument, denied the
motion to terminate, and ordered the petitioner removed to
Portugal. When the petitioner prosecuted an administrative appeal,
the BIA affirmed the IJ's order. The BIA held that Viveiros was
convicted of shoplifting because a "formal judgment of guilt" had
been entered against him. See id. § 1101(a)(48)(A). This timely
petition for judicial review followed.
This case turns on a singular question of statutory
construction: was the petitioner, with respect to the crime of
shoplifting, "convicted" within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(ii)? Both the IJ and the BIA answered this
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question in the affirmative. We review the agency's legal
conclusion de novo, ceding some deference to its interpretation
because the statute at issue falls within its purview. See
Arévalo-Girón v. Holder, 667 F.3d 79, 82 (1st Cir. 2012); Mendez-
Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010).
Whether a person is "convicted" within the meaning of
section 1227(a)(2)(A)(ii) depends on whether his particular set of
circumstances comes within the definitional ambit of a related
statute, 8 U.S.C. § 1101(a)(48)(A). Under the latter statute, a
"conviction" can occur in either of two ways. First, a conviction
takes place if there is "a formal judgment of guilt of the alien
entered by a court." 8 U.S.C. § 1101(a)(48)(A). Second, a
conviction likewise occurs if "(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." Id.The agency rested its decision on the first definition of
"conviction," and our review is restricted to the ground of the
agency's holding. See El Moraghy v. Ashcroft, 331 F.3d 195, 203
(1st Cir. 2003).
The petitioner concedes that the disposition of the
larceny charge constitutes a conviction. The parties spar,
however, over whether the shoplifting charge culminated in a
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"formal judgment of guilt" within the meaning of the first
definition of "conviction." The petitioner posits that this
definition requires something more than a mere finding of guilt;
otherwise, the second definition would be superfluous. The
petitioner says that the "something more" is a sentence. In his
view, he received no sentence for the shoplifting crime, and,
therefore, that charge did not result in a "formal judgment of
guilt" under the first definition.
The facts of this case do not demand that we test the
petitioner's hypothesis because his argument fails on its own
terms. We explain briefly.
At the time that the state court found the petitioner
guilty of shoplifting, it ordered him to pay a $250 fine. The
finding of guilt coupled with the imposition of a pecuniary
sanction constituted a formal judgment of guilt by any measure.
See Mejia Rodriguez v. U.S. DHS, 629 F.3d 1223, 1226-27 (11th Cir.
2011) (per curiam) (holding 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"); Singh v.
Holder, 568 F.3d 525, 530-31 (5th Cir. 2009) (defining "formal
judgment of guilt" by reference to Fed. R. Crim. P. 32(k)(1)); see
also Ira J. Kurzban, Kurzban's Immigration Law Sourcebook 220 (12th
ed. 2010).
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The petitioner endeavors to alter this reality by
insisting that the subsequent vacation of the $250 fine
transmogrifies his case into one in which no sentence was ever
imposed. This attempt to rewrite history cannot survive scrutiny.
We previously have held that when an alien's conviction is vacated
for reasons other than procedural or substantive error, he remains
"convicted" for immigration purposes. See, e.g., Rumierz v.
Gonzales, 456 F.3d 31, 39-40 (1st Cir. 2006); Herrera-Inirio v.
INS, 208 F.3d 299, 305 (1st Cir. 2000). Other courts uniformly
have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667
F.3d 448, 452-53 (4th Cir. 2012); Poblete Mendoza v. Holder, 606
F.3d 1137, 1141 (9th Cir. 2010); Saleh v. Gonzales, 495 F.3d 17,
24-25 (2d Cir. 2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245
(3d Cir. 2006). It necessarily follows that the vacation of a fine
for reasons unrelated to procedural or substantive error does not
dissipate the underlying conviction for purposes of section
1227(a)(2)(A)(ii).
The petitioner's case falls within this taxonomy. There
is no indication in the record that his fine for shoplifting was
vacated on account of either procedural or substantive error. To
the contrary, the state court docket reflects that roughly five
months after the fine was imposed, it was waived "on recommendation
of [the] Probation Dept." When the petitioner's counsel sought
clarification regarding the final disposition, the state court
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wrote that the "docket should reflect [a] guilty finding with no
fines or costs." The implication of these docket entries is
pellucid: the state court, exercising clemency, waived the
petitioner's fine at the behest of his probation officer. There is
not the slightest hint that the waiver came about because of some
legal infirmity in the shoplifting proceedings. Accordingly, the
shoplifting conviction remains a "formal judgment of guilt," 8
U.S.C. § 1101(a)(48)(A), and endures for immigration law purposes.
We reject out-of-hand the petitioner's suggestion that
there was no "formal judgment of guilt" because he was never
ultimately punished for his shoplifting crime. See Griffiths v.
INS, 243 F.3d 45, 54 (1st Cir. 2001) (stating that "the punishment
question is irrelevant" to an inquiry into whether a formal
judgment has been imposed).1 Congress explicitly included a
punishment requirement in the second definition of "conviction" but
withheld it from the first definition. This is unimpeachable proof
that a "formal judgment of guilt," within the meaning of the
statute at issue here, does not necessarily require a punitive
sanction. See Duncan v. Walker, 533 U.S. 167, 173 (2001)
(explaining that "where Congress includes particular language in
one section of a statute but omits it in another section of the
1
To the extent that the petitioner relies upon the facts of
Griffiths, that case is easily distinguished. In Griffiths, the
court simply "filed" a guilty plea without ever imposing a
sentence. See 243 F.3d at 51-52.
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same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion" (internal
quotation marks omitted)).
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.
It is so ordered.
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