Omar Gomaa Orabi v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-4025
______
OMAR OBD GOMAA ORABI,
a/k/a OMAR GOMMA ORABI
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______
On Appeal from the Board of Immigration Appeals
(File No. A072-759-091)
Immigration Judge: Honorable Walter Durling.
______
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2013
Before: SMITH, GARTH, and SLOVITER Circuit Judges.
(Opinion Filed: January 2, 2014)
1
Omar Obd Gomaa Orabi
Moshannon Valley Correctional Center
555 Geo Drive
Philipsburg, PA 16866
Petitioner Pro Se
Sharon M. Clay, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Timothy B. Stanton, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______
OPINION OF THE COURT
______
GARTH, Circuit Judge.
Petitioner, Omar Abd Gomaa Orabi, appeals from an
order of removability, entered by the Honorable Walter
Durling, U.S. Immigration Judge (“IJ”), on May 22, 2012,
and approved by the Board of Immigration Appeals (“BIA”)
on September 18, 2012.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
For the reasons that follow, we will reverse the decision of
the IJ and BIA.
2
I
Orabi, an Egyptian citizen, was admitted to the United
States in 1990 and became a lawful permanent resident
without conditions in 1996. In 2010, he was convicted in the
U.S. District Court for the Southern District of New York
(“S.D.N.Y.”) for the offenses of Conspiracy to Commit Fraud
in connection with Access Devices, Possession of Counterfeit
Access Devices, Possession of Counterfeit and Forged
Checks, and Aggravated Identity theft. He was sentenced to a
term of imprisonment of 70 months. In November 2011, the
District Court amended its judgment and recalculated Orabi‟s
sentence; however, Orabi was still sentenced to a term of 70
months. He appealed that order to the Second Circuit in
December 2011, and that appeal remains pending. See
United States v. Ibrahim (Orabi), C.A. No. 12-0044 (2d Cir.,
filed Dec. 29, 2011).
In February 2012, the Department of Homeland
Security (“DHS”) initiated removal proceedings against
Orabi. Among other things, DHS charged that Orabi was
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his
S.D.N.Y. conviction was for an aggravated felony. See 8
U.S.C. § 1101(a)(43)(R). Orabi notified DHS and the
Immigration Court that he was appealing the S.D.N.Y.
conviction, and DHS moved to withdraw the aggravated
felony removal charge. At a subsequent removal hearing,
Orabi appeared pro se and took part in an ambiguous
exchange with the IJ regarding the status of the Second
Circuit appeal. At the IJ‟s request, Orabi also agreed to
provide a letter that ostensibly withdrew his Second Circuit
appeal. DHS therefore moved to reinstate the removal
charge, and the IJ sustained it.
3
The appellate record of the Second Circuit reveals
neither the letter, which ostensibly withdrew Orabi‟s appeal,
nor any motion by Orabi to withdraw the appeal. 1 Indeed,
after a thorough examination of the docket sheet of the
Second Circuit, it appears that Orabi‟s appeal from his
S.D.N.Y. conviction is still awaiting disposition by the
Second Circuit.
We make reference to the record of the Second Circuit
because it is that record that is controlling regarding the
documents received and matters affecting the appeal of a
litigant. Moreover, absent any proof of actions, documents,
affidavits, or similar submissions that might contradict the
record, it is the record that governs. See, e.g., U.S. v.
Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996) (“We believe
that a certified docket sheet is adequate, absent some
contradictory evidence by the defendant, to establish the
existence of a prior conviction for this sentencing purpose”
(citing United States v. Dickens, 879 F.2d 410 (8th Cir.
1989)); Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974)
(“[T]he district court‟s docket cannot be impeached by
affidavit” (citing Wall v. United States, 97 F.2d 672 (10th
Cir. 1938), cert. denied, 305 U.S. 632 (1938))). Here, as we
have indicated, the record is devoid of any such submissions
by Orabi. Hence, we regard Orabi‟s appeal of his criminal
1
We may take judicial notice of the contents of another
Court‟s docket. See, e.g., Mar. Elec. Co., Inc. v. United
Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991); Porter
v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010); Singh v.
U.S. Dep‟t of Homeland Sec., 526 F.3d 72, 80 n. 9 (2d Cir.
2008); see also F.R.E. 201(b). But see Berishaj v. Ashcroft,
378 F.3d 314, 330 (3d Cir. 2004) abrogated on other grounds
by Nbaye v. Attorney General, 665 F.3d 57 (3d Cir. 2011).
4
conviction as still extant and therefore viable. We credit
Orabi‟s appeal to the BIA, where he has argued that his
Second Circuit appeal has never been withdrawn.
While Orabi argued on appeal to the BIA that his
convictions were not final for immigration removal and that
the IJ‟s removal order was void, the BIA nevertheless held
that his conviction remained final for immigration purposes.
The BIA stated:
[U]nder section 101(a)(48)(A) of the
Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A), the term “conviction” means
“a formal judgment of guilt of the alien entered
by a court.” Whether such judgment may be
subject to direct appeal is immaterial to the
attachment of immigration consequences. See,
e.g., Planes v. Holder, 686 F.3d 1033 (9th Cir.
2012)2. . . . The Immigration Judge therefore
properly considered the immigration
consequences of [Orabi‟s] conviction.
2
The citation provided by the BIA for Planes v. Holder, 686
F.3d 1033 (9th Cir. 2012), is actually a citation to a
concurrence in an order denying rehearing en banc by the
Honorable Sandra S. Ikuta, a Ninth Circuit U.S. Court of
Appeals Judge. The dissent in that order was written by the
Honorable Stephen R. Reinhardt, U.S. Court of Appeals
Judge. We discuss his reasoning in text infra. The citation to
the initial panel decision denying Planes‟s petition is Planes
v. Holder, 652 F.3d 991 (9th Cir. 2011), authored by Judge
Ikuta.
5
Accordingly, the BIA dismissed Orabi‟s appeal.3
On August 12, 2013, the Government filed a letter
brief stating that: (1) Orabi had been deported to Egypt; (2)
despite Orabi’s deportation, we retained jurisdiction; and (3)
the Government was prepared to return Orabi to the United
States pursuant to Immigration Control Enforcement (“ICE”)
regulations. See ICE Policy, § 11061.1(2) (“Absent
extraordinary circumstances, if an alien who prevails before
the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was
removed while his or her [petition for review] was pending,
ICE will facilitate the alien‟s return to the United States if
either the court‟s decision restores the alien to lawful
permanent resident (LPR) status, or the alien‟s presence is
necessary for continued administrative removal
proceedings.”); see also 8 U.S.C. § 1229a(b)(2)(A) (requiring
an immigrant‟s presence at a removal hearing absent the
parties‟ consent or a telephonic or video conference).
Orabi now petitions pro se before us for review.
Whether we have jurisdiction is the crux of his appeal from
the BIA. The answer to this question depends on whether the
S.D.N.Y. conviction, which is on appeal to the Second
Circuit, was a final judgment for immigration purposes.
II
3
Orabi also submitted to the BIA a copy of a Second Circuit
order dated July 16, 2012 granting his motion for an
extension of time in his criminal appeal. The BIA noted that
the order constituted new evidence but held that the pendency
of a criminal appeal was immaterial to Orabi‟s immigration
proceedings.
6
Although 8 U.S.C. § 1252(a)(2)(C) provides that “no
court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed [certain] criminal offense[s],” 8 U.S.C.
§ 1252(a)(2)(D) grants us jurisdiction to review
“constitutional claims or questions of law raised upon a
petition for review” of final removal orders. Paredes v. Att‟y
Gen., 528 F.3d 196, 198 (3d Cir. 2008); Papageorgiou v.
Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005). We review
questions of law de novo, Caroleo v. Gonzales, 476 F.3d 158,
162 (3d Cir. 2007), but we “will not disturb the IJ‟s
credibility determination and findings of fact if they are
supported by reasonable, substantial and probative evidence
on the record considered as a whole.” Tarrawally v. Ashcroft,
338 F.3d 180, 184 (3d Cir. 2003) (internal quotation marks
omitted). Whether Orabi‟s conviction was final for
immigration purposes despite the pendency of his appeal to
the Second Circuit is a question of law subject to plenary
review. See Henry v. Bureau of Immig. & Customs
Enforcement, 493 F.3d 303, 306 (3d Cir. 2007).
III
The Government offers three arguments in support of
its position that Orabi‟s conviction was final for immigration
purposes: (1) the record supports the Agency‟s finding that
Orabi withdrew his appeal to the Second Circuit; (2) Orabi‟s
conviction was final regardless of whether his appeal was
withdrawn because his appeal only challenged his sentence
and not the finding of his guilt; and (3) this Court should
adopt the position of its sister Circuits and the BIA that a
conviction is final for immigration purposes regardless of
whether a direct appeal is pending.
7
A
We have already discussed supra why the
Government‟s position as to the withdrawal of Orabi‟s appeal
cannot prevail. Based on the Second Circuit record, Orabi
had – and has – a pending appeal before that Court. See
Fiadjoe v. Att‟y Gen., 411 F.3d 135, 153 (3d Cir. 2005).
Additionally, the BIA did not base its decision on its finding
that Orabi did not have a pending appeal, but rather on its
determination that a conviction is final for immigration
purposes regardless of whether a direct appeal is pending.
See AR 3 (citing Planes v. Holder, 686 F.3d 1033, 1034 (9th
Cir. 2012) (Ikuta, J., concurring in denial of rehearing en
banc)).
B
The Government‟s argument regarding the
sentence/conviction distinction and the contents of Orabi‟s
Second Circuit appeal is similarly unavailing. Because the
BIA did not reach its decision based on this ground, we may
not affirm the judgment on this ground. See Sec. & Exch.
Comm‟n v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make,
must judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or
improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate
or proper basis.”); Li v. Att‟y Gen., 400 F.3d 157, 163 (3d
Cir. 2005) (noting that a court cannot affirm an agency
decision on a ground upon which the agency did not rely).
C
8
Thus, we turn to the Government‟s concluding
argument concerning the finality for immigration purposes of
the Second Circuit appeal from Orabi‟s criminal judgment of
conviction.
Prior to the passage of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), it was
“well established that a conviction does not attain a sufficient
degree of finality for immigration purposes until direct
appellate review of the conviction has been exhausted or
waived.” In re Ozkok, 19 I. & N. Dec. 546, 552 n.7 (BIA
1988) (citing Marino v. INS, 537 F.2d 686 (2d Cir. 1976);
Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir.1975); Will
v. INS, 447 F.2d 529 (7th Cir.1971)); see also Planes, 686
F.3d at 1037 (Reinhardt, J., dissenting from the denial of
rehearing en banc) (citing “the longstanding rule that a
conviction is not final for immigration purposes until the
immigrant has exhausted or waived his direct appeal as of
right”).
The IIRIRA defined the term “conviction,” for
purposes of immigration removal as:
a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld,
where . . . (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.
8 U.S.C. § 1101(a)(48)(A).
9
Thus, the IIRIRA‟s amendment, which focuses solely
on the term “conviction,” sought to broaden the scope of that
term, but in so doing, it did not refer to, amend, change, or
even mention doing away with the need for appeal to acquire
finality of judgment. Understandably, Section 322, as
recalled in the Conference Committee Report of the House of
Representatives, addressed only adjudications that were
“deferred” (a product of numerous state procedures) and
instances in which the subject alien has violated a term or
condition of probation. See H.R. Conf. Rep. No. 828, 104th
Cong., 2nd Sess.1996, 1996 WL 563320 at *496-97. In those
cases, the IIRIRA amendment was designed to correct “a
myriad of provisions for ameliorating the effects of a
conviction” by giving effect to the “original finding or
confession of guilt . . . to establish a „conviction‟ for purposes
of the immigration laws.” Id.
Consequently, following IIRIRA‟s passage, this
Court‟s precedent governing the finality requirement in
immigration removal cases remained undisturbed. In Paredes
v. Att‟y Gen., decided twelve years later than the amendment
to the IIRIRA, we understandingly subscribed to the position
that until such time as a direct appeal from a conviction that
authorizes removal has been resolved, the judgment is not
final for immigration removal purposes. 528 F.3d 196, 198
(3d Cir. 2008). Our jurisdiction for immigration removal
purposes is therefore retained.4
Other Courts, however, have held that a conviction is
final for immigration purposes notwithstanding any pending
4
As we stated, the Government conceded in its August 12,
2013 letter brief that despite Orabi‟s deportation, we retain
jurisdiction.
10
appeals, without giving effect to the purpose of the IIRIRA.
See, e.g., Planes, 686 F.3d at 1034 (Ikuta, J., concurring in the
denial of rehearing en banc) (collecting cases).
We do not agree that the IIRIRA eliminated a direct
appeal from the finality rule in its definition of conviction.
Hence, we do not agree with those Courts that have adopted
this interpretation. See, e.g., id. (collecting cases). By doing
so, they have vitiated, without reason, the BIA‟s rule
formulated and established in In re Ozkok, 19 I. & N. Dec.
546, 552 n.7 (BIA 1988).
In Ozkok, the BIA held that “[w]here adjudication of
guilt has been withheld, . . . further examination of the
specific procedure used and the state authority under which
the court acted will be necessary.” 19 I. & N. at 551
(emphasis added). The BIA went on to identify three
elements that established a “conviction” in such settings:
(1) a judge or jury has found the alien guilty or
he has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to
warrant a finding of guilty;
(2) the judge has ordered some form of
punishment, penalty, or restraint on the person‟s
liberty to be imposed (including but not limited
to incarceration, probation, a fine or restitution,
or community-based sanctions such as a
rehabilitation program, a work-release or study-
release program, revocation or suspension of a
driver‟s license, deprivation of nonessential
activities or privileges, or community service);
and
11
(3) a judgment or adjudication of guilt may be
entered if the person violates the terms of his
probation or fails to comply with the
requirements of the court‟s order, without
availability of further proceedings regarding the
person‟s guilt or innocence of the original
charge.
Id. at 551-52. That is, “for immigration purposes, a deferred
adjudication [as distinct from a pending appeal] would be
considered a conviction if three elements were met, the third
of which consisted of a finality requirement.” Planes, 686
F.3d at 1040 (Reinhardt, J., dissenting from the denial of
rehearing en banc) (emphasis added).
While Congress “adopted almost verbatim” this
definition of “conviction” in the IIRIRA, id. at 1039, the
statute explicitly eliminated the finality requirement for
deferred adjudications. See 8 U.S.C. § 1101(a)(48)(A); see
also H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess.1996,
1996 WL 563320 at *496-97. Indeed, the Congressional
Conference Committee Report accompanying IIRIRA refers
only to a modification of the treatment of deferred
adjudications: “This new provision, by removing the third
prong of Ozkok, clarifies Congressional intent that even in
cases where adjudication is ‘deferred,’ the original finding or
confession of guilt is sufficient to establish a „conviction‟ for
purposes of the immigration laws.” Id. (emphasis added),
quoted in Moosa v. INS, 171 F.3d 994, 1002 (5th Cir. 1999)).
Therefore, we agree with the Planes dissent that
Nothing in IIRIRA or its legislative history
suggests that Congress intended the phrase
“formal judgment of guilt” to be interpreted any
12
differently from how it always had been
interpreted prior to the enactment of the statute.
. . . The elimination of the finality provision for
deferred adjudications, along with the failure to
make any change in the language regarding
direct appeals as of right . . . demonstrates
Congress‟ intent to retain the finality rule for
the latter category of appeals.
686 F.3d at 1039-40 (Reinhardt, J., dissenting from the denial
of rehearing en banc); see also Williams v. Taylor, 529 U.S.
420, 434 (2000) (“When the words of the Court are used in a
later statute governing the same subject matter, it is respectful
of Congress and of the Court‟s own processes to give the
words the same meaning in the absence of specific direction
to the contrary.”).
Given that Orabi‟s appeal was one of right and that no
deferred adjudication is at issue here, we hold that the
IIRIRA‟s elimination of the finality requirement in the case of
deferred adjudications does not disturb the longstanding
finality rule for direct appeals recognized in Ozkok and is
irrelevant to the matter before us.
Further, Ozkok, which states that “a conviction does
not attain a sufficient degree of finality for immigration
purposes until direct appellate review of the conviction has
been exhausted or waived,” 19 I. & N. Dec. at n. 7, is
approvingly cited in Paredes as pertaining to a direct appeal
as distinguished from a collateral appeal of a judgment, 528
F.3d at 198. Paredes, itself, involved a collateral appeal taken
after the petitioner, Paredes, had suffered two state (New
Jersey) convictions. Paredes did not appeal the state
13
convictions but filed petitions for writs of coram nobis to
challenge them. Id. We explained that a petition for a writ of
coram nobis is not a direct appeal of a conviction but is
rather a collateral attack on a conviction. Id. (citing United
States v. Gross, 614 F.2d 365, 368 (3d Cir. 1980)). As such,
and because Paredes‟s time to appeal directly had expired, we
denied Paredes‟s petition. Id. at 198-99.
Accordingly, consistent with other Circuits, we do not
retain jurisdiction for immigration purposes in our Court
when a collateral appeal is taken from a criminal judgment
adverse to a petitioner because it is not a direct appeal. Id.
(citing United States v. Garcia-Echaverria, 374 F.3d 440,
445-46 (6th Cir. 2004); Grageda v. INS, 12 F.3d 919, 921
(9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5th Cir.
1982); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th
Cir. 1975); Will, 447 F.2d at 533).
Here, however, unlike the collateral challenge in
Paredes, the criminal appeal awaiting resolution by Orabi is a
direct appeal. The IIRIRA amendment that speaks only to
the term “conviction”5 cannot change the result of our
analysis and reasoning in Paredes, despite the holdings of
other Courts.
Further, despite the Government‟s claims to the
contrary, we do not read Planes as providing a consensus as
to the correct interpretation of the IIRIRA‟s “finality rule.”
As the Planes dissent correctly notes, “each of the cases cited
by the panel is distinguishable, and only the one decided by
the Tenth Circuit [United States v. Saenz-Gomez, 472 F.3d
791 (10th Cir. 2007)] purports to hold that a petitioner is not
5
8 U.S.C. § 1101(a)(48)(A).
14
entitled to a direct appeal as of right prior to being deported.”
686 F.3d at 1039 n.4 (Reinhardt, J., dissenting from the denial
of rehearing en banc). See, e.g., Waugh v. Holder, 642 F.3d
1279, 1281-82 (10th Cir. 2011) (denying petitioner‟s appeal
where his collateral attack was pending); Ramirez v. Holder,
447 F. App‟x 249 (2d Cir. 2011) (recognizing the statements
regarding finality in Puello v. Bureau of Citizenship &
Immig. Servs., 511 F.3d 324, 331-2 (2d Cir. 2007), as dicta);
Abreu v. Holder, 378 F. App‟x 59 (2d Cir. 2010) (vacating a
decision by the BIA that the pendency of a late-reinstated
appeal did not undermine the finality of an alien‟s
conviction); Saenz-Gomez, 472 F.3d at 794 (addressing the
definition of “conviction” in the context of a sentencing
enhancement at a criminal re-entry proceeding as opposed to
a removal hearing); Montenegro v. Ashcroft, 355 F.3d 1035
(7th Cir. 2004) (per curiam) (involving a collateral appeal and
a petition of certiorari rather than a direct appeal); Griffiths v.
INS, 243 F.3d 45, 54 (1st Cir. 2001) (“The INS was careful at
oral argument to say that it was not taking the position it
could deport someone adjudicated guilty while their appeal or
appeal period was pending. . . . Both the statutory language
and the legislative history reflect a determination that a
distinct mode of treatment for deferred adjudications is
appropriate in this context”); Moosa, 171 F.3d at 1001
(holding only that the finality rule had been eliminated as to
deferred adjudications, not as to direct appeals).
We are therefore convinced that the principle
announced and held in Ozkok – that “a conviction does not
attain a sufficient degree of finality for immigration purposes
until direct appellate review of the conviction has been
15
exhausted or waived”6 – is “is alive and well” in this Circuit
and is correctly applied to Orabi as this Circuit‟s precedent.
The judgment of the BIA will therefore be reversed,
with instructions that the Government, pursuant to its August
12, 2013 letter, be directed to return Orabi to the United
States in accordance with the ICE regulations cited.
6
19 I. & N. Dec. at 552 n.7.
16
SMITH, Circuit Judge, dissenting:
I agree with the majority that we have jurisdiction to
consider Orabi‟s petition for review and that his appeal from
a conviction on an aggravated felony is still pending before
the Second Circuit. I also agree that, prior to enactment of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), P.L. 104-208, 110 Stat. 3009 (1996),
the pendency of Orabi‟s direct appeal would have meant that
his conviction was not final for immigration purposes and
could not have been considered as a basis for removal. I part
company with the majority when it concludes that the
pendency of Orabi‟s direct appeal means that the conviction
cannot serve as a basis for removal following enactment of
the IIRIRA. That statute for the first time defined the term
“conviction” for purposes of the Immigration and Nationality
Act (INA). See 8 U.S.C. § 1101(a)(48)(A) (defining the term
“conviction”). Because this court did not address in Paredes
v. Attorney General, 528 F.3d 196, 198 (3d Cir. 2008), and
has not addressed in any other case, whether the finality
requirement survived the IIRIRA‟s new definition of
“conviction,” we are free to decide that issue now. In my
view, the plain text of the statutory provision defining
“conviction” does not require the exhaustion or waiver of an
alien‟s right to a direct appeal from a formal judgment of guilt
before that conviction may serve as the predicate for an
alien‟s removal. Because I conclude that the pendency of
Orabi‟s direct appeal no longer prevents his conviction from
serving as the basis for his removal as an aggravated felon, I
would deny the petition for review.
1
I.
As the majority correctly notes, prior to the enactment
of the IIRIRA, the term conviction was not defined in the
immigration laws. Under pre-IIRIRA case law, a conviction
could not serve as the basis for removal until it had “attained
a substantial degree of finality. Such finality [did] not occur
unless and until direct appellate review of the conviction . . .
ha[d] been exhausted or waived.” Marino v. INS, 537 F.2d
686, 691-92 (2d Cir. 1976) (citing, inter alia, Pino v. Landon,
349 U.S. 901 (1955)). This “finality requirement,” as some
courts have referred to it, was well established. White v. INS,
17 F.3d 475, 479 (1st Cir. 1994) (referring to the “finality
requirement,” which required the exhaustion or waiver of
direct appellate review before a conviction occurred for
immigration purposes); see also Martinez-Montoya v. INS,
904 F.2d 1018, 1025 (5th Cir. 1990) (tracing “requirement of
finality” to Supreme Court‟s decision in Pino); Morales-
Alvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981)
(acknowledging that conviction on direct appeal is not final
for immigration purposes); Aquilera-Enriquez v. INS, 516
F.2d 565, 570 (6th Cir. 1975) (discussing Pino and finality for
immigration purposes); Will v. INS, 447 F.2d 529, 533 (7th
Cir. 1971) (same).
As the states adopted various criminal procedures
designed to “amelior[ate] the consequences of a conviction,”
the finality requirement proved increasingly difficult to apply
in the immigration context.1 In re Ozkok, 19 I. & N. Dec.
1
The BIA explained in In re Ozkok that criminal “procedures
var[ied] from state to state and include[d] provisions for
2
546, 550-51 (BIA 1988). In Ozkok, the BIA revised its
standard for a final conviction for purposes of the INA. It
addressed the features necessary for a conviction following
(1) a judgment of guilt in the ordinary course of a criminal
proceeding (formal adjudications), and (2) an adjudication of
guilt that had been withheld (deferred adjudications).2 Id. at
annulling or setting aside the conviction, permitting
withdrawal of the plea, sealing the records after completion of
a sentence or probation, and deferring adjudication of guilt
with dismissal of proceedings following a probationary
period.” 19 I. & N. Dec. 546, 550 (1988). It further noted
that these “ameliorative provisions” also varied in their
applicability, with some being available to certain categories
of offenders, such as youthful or first offenders. Id.
2
Ozkok declared that
As in the past, we shall consider a person
convicted if the court has adjudicated him guilty
or has entered a formal judgment of guilt. . . .
Where adjudication of guilt has been
withheld, however, further examination of the
specific procedure used and the state authority
under which the court acted will be necessary.
As a general rule, a conviction will be found for
immigration purposes where all of the
following elements are present:
(1) a judge or jury has found the
alien guilty or he has entered a
plea of guilty or nolo contendere
3
551-53. In a footnote, the BIA noted that “[i]t is well
established that a conviction does not attain a sufficient
degree of finality for immigration purposes until direct
or has admitted sufficient facts to
warrant a finding of guilty;
(2) the judge has ordered some
form of punishment, penalty, or
restraint on the person‟s liberty to
be imposed (including but not
limited to incarceration,
probation, a fine or restitution, or
community-based sanctions such
as a rehabilitation program, a
work-release or study-release
program, revocation or suspension
of a driver‟s license, deprivation
of nonessential activities or
privileges, or community service);
and
(3) a judgment or adjudication of
guilt may be entered if the person
violates the terms of his probation
or fails to comply with the
requirements of the court‟s order,
without availability of further
proceedings regarding the
person‟s guilt or innocence of the
original charge.
19 I. & N. at 551-52.
4
appellate review of the conviction has been exhausted or
waived.” Id. at 552 n.7.
It was against this backdrop that Congress enacted the
IIRIRA in 1996. The Act defined for the first time the term
“conviction” for immigration purposes:
The term “conviction” means, with respect to an
alien, [(1)] a formal judgment of guilt of the
alien entered by a court or, [(2)] if adjudication
of guilt has been withheld, where—
(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.
8 U.S.C. §1101(a)(48)(A).
This new statutory definition, like the Ozkok decision,
established the standard applicable to two categories of
convictions: formal adjudications and deferred adjudications.
The question before us is whether this statutory definition
incorporates a finality requirement akin to that found in pre-
5
IIRIRA case law. The majority answers that question in the
affirmative; I disagree.
Our task in interpreting a statute “is to discern
legislative intent.” Morgan v. Gay, 466 F.3d 276, 277 (3d
Cir. 2008). “Because we presume that Congress‟ intent is
most clearly expressed in the text of the statute,” we examine
“the plain language of the relevant provision.” Reese Bros.,
Inc. v. United States, 447 F.3d 229, 235 (3d Cir. 2006); see
also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)
(instructing that the “first step” in interpreting a statute “is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in
the case”) (internal quotation marks and citations omitted).
Scrutiny of the IIRIRA definition of “conviction”
reveals no language requiring the exhaustion or waiver of a
direct appeal before an alien‟s conviction may serve as a
predicate for removal. Rather, the definition requires only
that there has been a “formal judgment of guilt of the alien
entered by a court.” 8 U.S.C. § 1101(a)(48)(A). As to
deferred adjudications, the definition demands a record that
has expressly or implicitly established the alien‟s guilt,
accompanied by the imposition of some restraint on the
alien‟s liberty. Id. In the absence of statutory language
specifying that a “conviction” under the IIRIRA requires the
exhaustion or waiver of the right to appeal, I conclude that the
pendency of a direct appeal does not preclude an alien‟s
conviction from serving as the basis for removal.
Nor does Lorillard v. Pons, 434 U.S. 575 (1978),
require a reading of the statute different from my own. There,
6
the Supreme Court observed that “Congress is presumed to be
aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a
statute without change.” Id. at 580. But that presumption is
not applicable here. First, Congress did not re-enact a
statutory definition of the term “conviction.” Instead,
Congress carefully fashioned for the first time in the IIRIRA
a definition of the term “conviction” for purposes of the INA.
Second, the definition it enacted was a departure from the
existing administrative standard set forth in Ozkok. As I see
it, congressional intent could not be more clear.
Prior to the IIRIRA, Ozkok established the standard for
formal and deferred adjudications. Both of these categories
required finality before a conviction could be the basis for
removal of an alien. Finality was required for formal
adjudications by virtue of the finality requirement highlighted
in the footnote in Ozkok. 19 I. & N. Dec. at 552. n.7. Finality
for deferred adjudications was necessary under the third
prong set forth in the Ozkok standard. Id. at 552.
In fashioning the definition of the term “conviction”
for immigration purposes, Congress embraced to a great
extent the Ozkok definition for conviction. Yet it stopped
short of adopting the Ozkok standard in its entirety. Instead,
in setting out the definition of conviction for the two
categories, Congress eliminated the third prong of the Ozkok
standard for deferred adjudications. That third prong had a
finality requirement. Id. (specifying that the deferred
adjudication qualified as a conviction if it was “without
availability of further proceedings regarding the person‟s guilt
or innocence of the original charge”).
7
By choosing to eliminate the finality requirement for
deferred adjudications in Ozkok, it stands to reason that
Congress considered it for convictions as well. Its
elimination of the finality requirement for deferred
adjudications resulted in a definition that demands treating
formal and deferred adjudications in the same manner. That
is, neither formal nor deferred adjudications now require the
exhaustion or waiver of a direct appeal before a conviction
may serve as a basis for removal under the INA.
Indeed, if Congress had intended to require a finality
component in the first statutory definition of the term
“conviction,” it could have easily included such a
requirement. Congress knows well, and knew at the time,
how to refer to final convictions because it did so in other
provisions in the INA concerning removal. See 8 U.S.C. §§
1227(a)(2)(D) (including among the class of criminal offenses
making an alien deportable, certain miscellaneous offenses
for which an alien “has been convicted (the judgment on such
conviction becoming final)”); 1228(c)(3)(A)(iii) (providing
that before a district court may enter a judicial order of
removal at the time of sentencing against an alien who is
deportable, there must be a valid waiver of the right to appeal,
the expiration of the period to file a petition for review, or the
final dismissal of an appeal from such a conviction); and
1231(a)(4)(B)(i) & (ii) (authorizing Attorney General to
remove an alien before he has completed a sentence of
imprisonment if the confinement of the alien is “pursuant to a
final conviction for a nonviolent offense”) (emphasis added).
I rely on the well-settled proposition “that where Congress
includes particular language in one section of a statute but
8
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposefully in
the disparate inclusion or exclusion.” Duncan v. Walker, 533
U.S. 167, 173 (2001) (internal quotation marks and citations
omitted). I see no basis in the principles of statutory
interpretation for importing the finality requirement in pre-
IIRIRA case law into the definition of “conviction” at 8
U.S.C. § 1101(a)(48(A).3
II.
The majority is of the view that Paredes v. Attorney
General, 528 F.3d 196 (3d Cir. 2008), has already determined
that the “finality requirement in immigration removal cases
remained undisturbed” by the IIRIRA‟s definition of the term
“conviction.” Again, I disagree. Paredes concerned whether
a pending collateral attack negated the finality of a
conviction for immigration purposes. We agreed with our
3
The majority relies on legislative history. Because the plain
text of the statutory definition of “conviction” makes clear
that exhaustion or waiver of the right to a direct appeal is not
required, I do not address that aspect of the majority‟s
reasoning. See Bruesewitz v. Wyeth Inc., 561 F.3d 233, 244
(3d Cir. 2009) (acknowledging that resort to legislative
history is unnecessary “if a statute is clear on its face”); see
also United States v. Gregg, 226 F.2d 253, 257 (3d Cir. 2000)
(“To determine a law‟s plain meaning, we begin with the
language of the statute. If the language of the statute
expresses Congress‟s intent with sufficient precision, the
inquiry ends there and the statute is enforced according to its
terms.”).
9
sister courts of appeals that a pending collateral attack did not
vitiate the finality requirement. 528 F.3d at 198-99. Because
the alien was seeking to set aside his conviction in a collateral
attack proceeding, his conviction was indisputably final.
There was no need, therefore, to address in Paredes whether
the pendency of a direct appeal of a conviction post-IIRIRA
precluded an alien‟s conviction from constituting a basis for
removal. Indeed, Paredes did not even acknowledge that
Ozkok was decided pre-IIRIRA or that the IIRIRA had
defined the term “conviction” for the first time for purposes
of the INA. Quite simply, Paredes is inapposite to the
question before us.
To be sure, as the majority acknowledges, there is no
consensus among the courts of appeals as to whether there is
a finality requirement post-IIRIRA for a conviction to
constitute a basis for removal. Some of our sister courts of
appeals have concluded that there is no finality component in
the new statutory definition of “conviction.” Planes v.
Holder, 652 F.3d 991, 995 (9th Cir. 2011) (rejecting alien‟s
argument urging court to deviate from plain language of
statute and to rely on case law predating enactment of a
statutory definition of “conviction” and declaring that a
“conviction” under § 1101(a)(48)(A) “exists once the district
court enters judgment, notwithstanding the availability of an
appeal as of right”); Planes v. Holder, 686 F.3d 1033, 1034
(9th Cir. 2012) (concurring in denial of rehearing en banc)
(concluding that the determination of whether an alien has a
conviction is without regard to “whether appeals have been
exhausted or waived”); Waugh v. Holder, 642 F.3d 1279,
1284 (10th Cir. 2011); Montenegro v. Ashcroft, 355 F.3d
10
1035, 1037 (7th Cir. 2004); see also Puello v. Bureau of
Citizenship & Immig. Servs., 511 F.3d 324, 332 (2d Cir.
2007) (observing that the IIRIRA “eliminate[d] the
requirement that all direct appeals be exhausted or waived
before a conviction is considered final under the statute”);
Moosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999) (observing
that there was no indication that the finality requirement of
Pino v. Landon “survive[d] the new statutory definition of
„conviction‟ found in the IIRIRA”).
Yet there are decisions which have rejected the
contention that the finality requirement may no longer be a
factor in deciding whether there is a basis for removal. See
Abreau v. Holder, 378 F. App‟x 59, 62 (2d Cir. 2010)
(remanding, despite Puello‟s observation, for the BIA to
determine if the alien‟s conviction was sufficiently final for
purposes of removal); see also Planes v. Holder, 686 F.3d
1033, 1037, 1039 n.4 (9th Cir. 2012) (dissenting from denial
of rehearing en banc) (distinguishing the authority that
purportedly holds that the finality requirement did not survive
the enactment of the statutory definition of “conviction” in
the IIRIRA).
“Our task is to apply the text, not to improve on it.”
Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S. 120, 126
(1989). I conclude that the statutory term “conviction” in the
IIRIRA does not require the exhaustion or waiver of an
alien‟s right to appeal a conviction before that conviction may
qualify as a ground for removal. Accordingly, the pendency
of Orabi‟s direct appeal post-IIRIRA does not preclude his
conviction from serving as the basis for his removal. For that
reason, I would deny Orabi‟s petition for review.
11
I respectfully dissent.
12