Nguyen v. Garland ( 2021 )

Case: 19-60342 Document: 00515858968 Page: 1 Date Filed: 05/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2021
No. 19-60342 Lyle W. Cayce
Clerk
Vu Quang Nguyen, also known as Vi Quang Nguyen, also
known as Vu Hguyen,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A057 359 272
Before Jones, Clement, and Graves, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Vu Quang Nguyen, a Vietnam native, asks the court to reevaluate a
Board of Immigration Appeals decision that affirmed the ruling of an
immigration judge who had found that Mr. Nguyen was subject to removal
from the United States because he had been convicted of a crime involving
moral turpitude. Though Mr. Nguyen has had a few run-ins with the law, the
immigration judge based the removal order on his California forgery
conviction.
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No. 19-60342
To prove the conviction’s existence, the Department of Homeland
Security submitted a plea agreement and terms of probation form. The form
shows that Mr. Nguyen pleaded guilty to forgery, details the facts, and shows
that he received a sentence of 240 days in jail and three years of probation.
Mr. Nguyen, his lawyer, the prosecutor, interpreter, and the deputy clerk of
court all signed the plea agreement. The deputy clerk stamped the agreement
as filed. Though this signed, stamped, and filed document lacks a judge’s
signature, we hold that it can serve as clear and convincing evidence of a
conviction and therefore deny Mr. Nguyen’s petition for review.
I.
Mr. Nguyen was admitted to the U.S. as a lawful permanent resident
in 2004. California authorities arrested him multiple times between 2010 and
2011. Records show that he entered guilty pleas for three counts of burglary,
three counts of false presentation of identifying information, and one count
of forgery.
In 2018, authorities apprehended Mr. Nguyen at George Bush
Intercontinental Airport where he applied for admission to the U.S. as a
lawful permanent resident. DHS served him with a Notice to Appear and
charged him with removability pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as
an alien convicted of a crime involving moral turpitude.
Mr. Nguyen appeared before the immigration judge and admitted the
allegations regarding his nationality but denied the charges related to his
forgery conviction. He did not file an application for relief from removal but
instead challenged the grounds for removal. He argued that the document
presented, the “Advisement and Waiver of Rights for a Felony Guilty Plea”
that includes a “Terms and Conditions of Felony Probation” page, was
insufficient to establish the existence of a conviction under 8 U.S.C. §
1101(a)(48)(A) by clear and convincing evidence. Mr. Nguyen admitted that
he signed the plea agreement form and accepted that forgery is a crime
involving moral turpitude. But he instead argued that the form did not show
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an adjudication of guilt because it lacked a judge’s signature and failed to
show that a judge or jury had imposed a sentence.
The immigration judge rejected these arguments because the plea
agreement was signed by Mr. Nguyen, his defense counsel, and the
prosecutor and was stamped as filed and signed by the deputy clerk. The form
showed that Mr. Nguyen pleaded guilty to the charged offenses and specified
the agreed disposition of 240 days in jail with credit for time served and three
years of probation. Accordingly, the immigration judge found that the form
was clear and convincing evidence of a criminal conviction because it
contained an indication of guilt and the sentence imposed. Based on the clear
and convincing evidence of a forgery conviction, the immigration judge
ordered that Mr. Nguyen be removed.
Mr. Nguyen appealed and raised the same arguments before the Board
of Immigration Appeals. But it too found that the form was clear and
convincing proof of a forgery conviction and concluded that the signed and
stamped plea agreement constituted an “official record of plea, verdict, and
sentence” for Mr. Nguyen’s forgery offense. 8 U.S.C. § 1229a(c)(3)(B)(ii).
Mr. Nguyen filed a timely petition for review.
II.
Due to a jurisdiction-stripping provision, this court generally lacks
jurisdiction to review removal orders of aliens convicted of a crime involving
moral turpitude. 8 U.S.C. §§ 1252(a)(2)(C), 1182(a)(2)(A)(i)(I). But the
provision creates an exception that allows us to review constitutional claims
and questions of law. § 1252(a)(2)(D); see Guerrero-Lasprilla v. Barr, 140 S.
Ct. 1062 (2020). We conclude we can address a legal question like whether
8 U.S.C. § 1101(a)(48)(A) requires DHS to produce a document bearing a
judge’s signature to prove the existence of a conviction. While such questions
of law are reviewed de novo, we give “deference to the BIA’s interpretation
of immigration statutes unless the record reveals compelling evidence that
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the BIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997).
III.
Section 1101(a)(48)(A) defines “conviction” as a “formal judgment
of guilt.” Mr. Nguyen takes the idea that a formal judgment of guilt requires
a judge’s signature from Singh v. Holder, 568 F.3d 525 (5th Cir. 2009). In that
case, the panel was trying to determine whether the date of conviction was
the date the jury entered a verdict or the date a judge imposed a sentence. Id.
at 526-27.
Singh had fled after a jury found him guilty of unlawful wounding in
1987 but before sentencing. Id. His flight resulted in over a ten-year gap
between the jury’s verdict and the imposition of a sentence, which was finally
imposed in 1998. Id. To deny him naturalization rights, INS had to show that
the conviction occurred after 1990. Id. at 527. The panel looked to section
1101’s definition of conviction for guidance and concluded that the
conviction occurred at the time of sentencing. Id. at 530-31.
When interpreting section 1101, the panel followed the lead of both
the Second and Third Circuits, which had defined “judgment of guilt” by
reference to the analogous term “judgment of conviction” found in Federal
Rule of Criminal Procedure 32(k)(1). Id. (citing Puello v. Bureau of Citizenship
and Immigr. Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d
552, 562 (3d Cir. 2002)).1 The rule provides that “[i]n the judgment of
conviction, the court must set forth the plea, the jury verdict or the court’s
findings, the adjudication, and the sentence.” Fed. R. Crim. P. 32(k)
1
Federal Rule of Criminal Procedure 32(k)(1) reads:
In General. In the judgment of conviction, the court must set forth the
plea, the jury verdict or the court’s findings, the adjudication, and the
sentence. If the defendant is found not guilty or is otherwise entitled
to be discharged, the court must so order. The judge must sign the
judgment, and the clerk must enter it.
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(emphasis added). The panel took this to mean that without a sentence there
is no judgment of guilt or judgment of conviction and thus no conviction. The
Singh panel remarked that such an understanding aligns with the Supreme
Court’s pronouncement that “‘[f]inal judgment in a criminal case . . . means
sentence. The sentence is the judgment.’” 568 F.3d at 530 (quoting Corey v.
United States, 375 U.S. 169, 174 (1963)).
While the Singh panel relied on part of Rule 32(k) as one piece of an
argument to establish that a conviction occurs when the court imposes a
sentence, Mr. Nguyen insists we should adopt all of Rule 32(k)’s
requirements into section 1101’s definition of conviction, in particular the
one that the “Judge must sign the judgment, and the clerk must enter it.”
Fed. R. Crim. P. 32(k).
But no court has imported all of Rule 32(k)’s requirements into
section 1101’s definition of conviction and found that the documents offered
as proof must include a judge’s signature. The Second Circuit dispelled the
notion that section 1101’s definition of conviction includes all of Rule
32(k)(1)’s requirements in Singh v. Department of Homeland Security, 526
F.3d 72 (2d Cir. 2008). There the court found that a Conditions of Probation
document signed only by Singh and the clerk of court could serve as proof of
a conviction because it was an official record of a sentence. Id. at 79.
Mr. Nguyen’s signature argument also runs headlong into problems
with another portion of the Immigration and Nationality Act, specifically,
section 1229a(c)(3)(B). That section offers a list of documents that “shall
constitute proof of a criminal conviction.” 8 U.S.C. § 1229a(c)(3)(B). The
list includes not only documents like an official record of plea, verdict, and
sentence but also documents like a docket entry from court records that
indicates the existence of a conviction; official minutes of a court proceeding
or a transcript of a court hearing in which the court takes notice of a
conviction; and an abstract of conviction prepared by the court in which a
conviction was entered. § 1229a(c)(3)(B)(ii)–(v). Not all of these documents
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would be expected to bear a judge’s signature. For instance, finding a judge’s
signature on a docket entry or transcript would be a surprise.
The BIA concluded that the plea agreement at issue here constituted
an official record of plea, verdict, and sentence under 1229a(c)(3)(B)(ii) and
could thus serve as evidence of a conviction. But if it were not to count as an
official record of plea, verdict, and sentence, because it lacks a judge’s
signature, a different provision of 1229a(c)(3)(B) would cover it. Part (vi)
discusses records “prepared by, or under the direction of, the court in which
the conviction was entered that indicate[] the existence of a conviction.”
§ 1229a(c)(3)(B)(vi). This plea agreement form shows the imposition of a
sentence, and the form is specific to Orange County and the deputy clerk of
court for Orange County signed it and stamped it as filed. So alternatively,
the form would fall within the scope of 1229a(c)(3)(B)(vi) as a document
prepared under the direction of the court in which the conviction was
entered.
IV.
Consequently, Mr. Nguyen has failed to show that the immigration
judge or BIA violated a statutorily imposed evidentiary requirement by
finding that the plea agreement at issue proved the existence of a forgery
conviction by clear and convincing evidence. It is not, as a matter of law,
deficient or inadmissible. Petition for review DENIED.
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