Antonio Reyes v. Loretta E. Lynch , 834 F.3d 1104 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO REYES, No. 14-73510
Petitioner,
Agency No.
v. A075-512-042
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2016*
Pasadena, California
Filed August 25, 2016
Before: Andrew J. Kleinfeld, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Kleinfeld
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Federal Rules of Appellate Procedure
34(a)(2).
2 REYES V. LYNCH
SUMMARY**
Immigration
The panel denied Antonio Reyes’s petition for review of
the Board of Immigration Appeals’ decision finding him
ineligible for adjustment of status or cancellation of removal
because he had been convicted of violating a controlled
substance law.
The panel held that a state conviction expunged under
state law is still a conviction for purposes of eligibility for
adjustment and cancellation. The panel wrote that an alien
may be considered convicted of a state crime under 8 U.S.C.
§ 1101(a)(48) when there is no formal judgment of guilt if
two conditions are met, and found that Reyes’s case involved
the second condition, whether probation was “some form of
punishment, penalty, or restraint on the alien’s liberty.”
The panel held that although Reyes’s conviction was
subsequently expunged, the terms of his probation, including
a fine and multiple limitations on his freedom, satisfied the
second condition and thus fulfilled the federal definition of a
conviction.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REYES V. LYNCH 3
COUNSEL
Michael A. Younge, Law Office of Michael A. Younge,
Anaheim Hills, California, for Petitioner.
Jason Wisecup, Trial Attorney; John W. Blakeley, Assistant
Director; Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
KLEINFELD, Senior Circuit Judge:
Reyes is a citizen of Mexico. He first entered the United
States without inspection in 1988. Reyes was convicted of
driving under the influence in 2003. In the same year, he was
detained by immigration officials, but was granted voluntary
departure. Reyes pleaded nolo contendere, and was found
guilty, of being “under the influence of a controlled
substance, methamphetamine,” in violation of California
Health and Safety Code § 11550(a) in 2008. The judgment
in that case suspended imposition of sentence and Reyes was
placed on “formal probation for a period of 36 months.”
During his three years of probation, he was subject to these
limitations on his liberty, among others:
• “Submit person and property to a search at any time of
the day or night by any law enforcement officer or
probation officer with or without a warrant or probable
cause.”
4 REYES V. LYNCH
• “Submit to periodic anti-narcotic tests/alcohol tests as
directed by the probation officer and treatment provider.”
• “Register as a convicted narcotics offender, carry proof of
registration at all times, display registration to any law
enforcement officer upon request.”
• “[Do] not associate with persons believed to be or known
to be narcotic or drug users, sellers or buyers, except in an
authorized drug counseling program.”
• “Do not own, use or possess any dangerous or deadly
weapons, including any firearms, knives or other
weapons.”
• “Do not drink or possess any alcoholic beverage and stay
out of places where they are the chief item of sale.”
He was also fined $289.38, including $100 in restitution.
Upon successful completion of his three years of
probation, the California Superior Court set aside Reyes’s
nolo contendere plea, dismissed the criminal case against
him, and terminated his probation.
In 2014, Reyes was charged with being removable from
the United States by the Department of Homeland Security.
The basis for removing him was that he had no right to be in
the United States at all, having entered without inspection and
having not been admitted or paroled into the United States.
What led to the case before us is that Reyes applied for
adjustment of status as a lawfully admitted immigrant based
on his marriage to a U.S. citizen, and sought cancellation of
REYES V. LYNCH 5
removal.1 The immigration judge ruled that he was ineligible
for adjustment or cancellation under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) because he had been convicted of
violating a controlled substance law. Reyes argues that his
conviction did not render him ineligible for relief because the
California state judge did not order “some form of
punishment, penalty or restraint on [his] liberty to be
imposed.”2
States have varying procedures for letting people with
relatively minor convictions start over with a clean slate, if
they can stay out of trouble long enough. California allows
those convicted of nonviolent drug-possession offenses to
have “the conviction on which the probation was based [to]
be set aside” if they successfully “complet[e] drug treatment,
and substantially compl[y] with the conditions of probation.”3
In California, the dismissal of these charges is not a dismissal
for all purposes, as the “nonviolent drug-possession offense
may be recorded by the Department of Justice, may be
disclosed in response to law enforcement inquiry, and must
be disclosed by the defendant in connection with specified
matters.”4
Immigration law provides that, although the slate may be
clean for various state purposes, that is not necessarily so for
1
See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1229b.
2
8 U.S.C. § 1101(a)(48)(A)(ii).
3
Cal. Penal Code § 1210.1(e)(1).
4
People v. Delong, 124 Cal. Rptr. 2d 293, 300 (Ct. App. 2002)
(emphasis omitted).
6 REYES V. LYNCH
purposes of removal of an illegal alien, such as Reyes.5 For
purposes of federal immigration law, the statute defines
conviction to include cases where “adjudication of guilt has
been withheld,” which is what “suspended imposition of
sentence” ordinarily means.6 Traditionally in criminal law,
the judgment includes the sentence, and is in the form of
“defendant has been convicted of such and such crime, and is
sentenced to such and such.”7 The federal definition of
conviction where adjudication of guilt has been withheld
includes aliens who have entered pleas of nolo contendere
and “the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.”8
In our en banc decision in Nunez-Reyes v. Holder, 646
F.3d 684, 690 (9th Cir. 2011), we overruled Lujan-
Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which had
held that expungement of a state conviction for simple
possession had to be treated the same way as expungement of
a federal conviction for simple possession under the Federal
First Offender Act. In Nunez-Reyes, we held the Equal
Protection Clause did not require treating expunged state
convictions the same as federal drug convictions expunged
under the Federal First Offender Act.9 Our en banc decision
5
8 U.S.C. § 1101(a)(48)(i)–(ii).
6
Id.
7
See Fed. R. Crim. P. 32(k)(1) (“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.”).
8
8 U.S.C. § 1101(a)(48)(A)(i)–(ii).
9
646 F.3d at 690.
REYES V. LYNCH 7
in Nunez-Reyes focused on the equal protection issue, and
“we assume[d], without deciding, that the statutory term
‘conviction’ includes expunged state convictions.”10
Under § 1101(a)(48), if there has been a “formal
judgment of guilt of the alien entered by a court,” the alien
has been convicted of a crime, even if the alien suffers no
punishment. When there is no formal judgment of guilt, an
alien may be still considered convicted of a relevant state
crime, if two conditions in the statute are met. The first
condition is that a relevant fact finder found the alien guilty,
or that the “alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant a
finding of guilt.”11 Since Reyes pleaded nolo contendere, that
element of a conviction is plainly satisfied. Accordingly, the
issue here turns on the second condition, whether his
probation was “some form of punishment, penalty, or
restraint on the alien’s liberty.”12
We now decide what we assumed without deciding in
Nunez-Reyes. California treats defendants who are in a
similar position to Reyes as though “both the arrest and the
conviction . . . never . . . occurred,” for most purposes.13
Congress, however, is entitled to take a different position, and
did. This is because California cannot “dictate how the term
10
Id. at 689 n.2.
11
8 U.S.C. § 1101(a)(48)(A)(i).
12
Id. § 1101(a)(48)(A)(ii).
13
Cal. Penal Code § 1210.1.
8 REYES V. LYNCH
‘conviction’ is to be construed under federal law.”14 If a
person is treated as convicted for federal immigration
purposes even where an adjudication of guilt has never been
made, then a fortiori Congress can treat proceedings as a
conviction where an adjudication of guilt has been
subsequently expunged. Our sister circuits all hold an
expunged state conviction is a conviction for immigration
purposes,15 and we see no reason to create a circuit split.
Reyes argues that since the terms of his probation were
intended to be entirely rehabilitative, and he served them
satisfactorily, he did not satisfy the element of the federal
definition of conviction, that “some form of punishment,
penalty, or restraint on the alien’s liberty” was imposed.16
Reyes would have us extend Retuta v. Holder, 591 F.3d 1181
(9th Cir. 2010), to his circumstances and hold that because of
the nature of his probation, he does not fit within the federal
definition of conviction.
Retuta, though, is distinguishable. In Retuta, the alien
was sentenced only to a fine of $100, which was stayed and
did not have to be paid.17 There were no terms of probation.
Retuta was entitled to leave court with no restraints on his
liberty beyond those applicable to persons who had never
14
Acosta v. Ashcroft, 341 F.3d 218, 223 (3d Cir. 2003).
15
See Wellington v. Holder, 623 F.3d 115, 122 (2d Cir. 2010); Resendiz-
Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262, 1271 (11th Cir. 2004); Acosta,
341 F.3d at 224; Vasquez-Velezmoro v. INS, 281 F.3d 693, 698 (8th Cir.
2002); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000).
16
8 U.S.C. § 1101(a)(48)(A)(i).
17
591 F.3d at 1185.
REYES V. LYNCH 9
been convicted of anything, and he did not have to pay the
$100 fine, because it was stayed. There was no restraint on
Retuta’s liberty, no fine, no punishment at all.18 There were
no conditions he had to meet regarding the stay of his $100
fine. We held that the federal definition of conviction “does
not include criminal judgments whose only consequence is a
suspended non-incarceratory sanction.”19 There has to be
“some punitive aspect” ordered by the court for there to be a
conviction.20
The California Superior Court in Reyes’s case did indeed
order “some form of punishment, penalty, or restraint on the
alien’s liberty,” unlike the state judge in Retuta. Reyes was
fined $289.38. Unlike the alien in Retuta, Reyes’s fine was
not suspended. If he did not pay it, his probation could be
revoked. During his probation, he suffered multiple restraints
on his liberty. He had to attend Alcoholics Anonymous
meetings daily and keep his probation officer advised of
where he lived. He was not allowed to own firearms, and he
was not allowed to associate with drug users or be where they
congregate. Those of us who have not been convicted of a
crime are not required to attend Alcoholics Anonymous
meetings or keep some probation office advised of our
address, we may own firearms if we choose, and we can go
to a restaurant even if we know that servers or other
customers may be drug users.
18
Id. at 1188.
19
Id.
20
Id.
10 REYES V. LYNCH
Though the word “probation” may not necessarily prove
a restraint on liberty, here it clearly did. A sentence of
probation, even with no incarceration, satisfies the
requirements of § 1101(a)(48)(A) so long as “the judge has
ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.” In this case both the fine and
the limitations on Reyes’s freedom to associate with whom he
likes, own guns, and so forth, all satisfied this definition.21
Thus we conclude that a state conviction expunged under
state law is still a conviction for purposes of eligibility for
cancellation of removal and adjustment of status. And even
though incarceration is not required, the federal definition of
conviction is satisfied regardless of the rehabilitative purpose
of probation, where the alien was punished or his liberty was
restrained by the terms of his probation. Because Reyes
suffered such a qualifying conviction for a crime relating to
a controlled substance under § 1182(a)(2)(A)(i)(II), he is
disqualified from seeking cancellation of removal and
adjustment of status. We deny his petition.
PETITION DENIED.
21
See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 640 n.11 (1988)
(“[A] fixed term of probation is itself a punishment that is criminal in
nature.”); Moosa v. INS, 171 F.3d 994, 1006 (5th Cir. 1999) (holding that
being required to “report to a probation officer every month of the term of
his community supervision . . . was a punishment and a restraint on his
liberty.”).