Gill, Rayford v. Ashcroft, John D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2994
RAYFORD GILL,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of a Decision of the
Board of Immigration Appeals
____________
ARGUED MAY 23, 2003—DECIDED JULY 8, 2003
____________
Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Aliens convicted of any
drug offense other than possessing less than 30 grams of
marijuana lose their right to remain in the United States.
8 U.S.C. §1227(a)(2)(B)(i). They also lose any opportunity
to apply for discretionary relief, such as cancellation of
removal, and to obtain judicial review of the administra-
tive decisions about those discretionary avenues. 8 U.S.C.
§1252(a)(2)(C). But all persons ordered removed retain
the right to judicial review of the antecedent, non-discre-
tionary questions, such as whether they are aliens and
whether they have committed disqualifying crimes. See
2 No. 02-2994
Yang v. INS, 109 F.3d 1185 (7th Cir. 1997). Rayford Gill, a
citizen of Belize admitted in 1994 as a permanent resident,
presents such an antecedent question. Although adminis-
trative officials concluded that he had been convicted of
possessing cocaine, Gill denies that the state proceedings
ended in a “conviction.” If the agency is right, then we
lack jurisdiction of Gill’s petition for review; if Gill is
right, then we have jurisdiction and the order of removal
must be set aside.
Gill pleaded guilty in an Illinois court to possession of
cocaine. He was sentenced to “410 probation,” a disposition
that takes its name from 720 ILCS 570/410. Section 410(f)
provides that, if a first offender completes this probation
without incident, “the court shall discharge the person
and dismiss the proceedings against him.” The statute
continues:
A disposition of probation is considered to be a
conviction for the purposes of imposing the condi-
tions of probation and for appeal, however, dis-
charge and dismissal under this Section is not a
conviction for purposes of this Act or for purposes
of disqualifications or disabilities imposed by law
upon conviction of a crime.
720 ILCS 570/410(g). If Illinois law were dispositive, then,
Gill would not have on his record a “conviction” for possess-
ing cocaine. But federal immigration law has its own
definition of that word. A provision added by the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996, Division C of Pub. L. 104-208, 110 Stat. 3009 (Sept.
30, 1996), reads as follows:
The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien en-
tered 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
No. 02-2994 3
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). Gill’s plea of guilty satisfies
part (i) of this definition, and the term of probation satisfies
part (ii), so he has been “convicted” even though “adjudica-
tion of guilt has been withheld”.
Gill asks us to look past the text of §1101(a)(48)(A) to the
history of this issue. Before 1996 the absence of a stat-
utory definition required the agency to come up with its
own. There were two possible approaches: either accept
for federal purposes whatever characterization the states
attached to their dispositions, or create a uniform rule
of federal common law. Each of these approaches has been
used for other purposes. For example, federal law imposes
stiff penalties on those who possess firearms despite
prior gun convictions. 18 U.S.C. §§ 922(g), 924(e). Under
the felon-in-possession laws, as under the immigration
laws, there have been two principal problems: first, how
to classify diversionary dispositions such as “410 probation”
that impose some restraint on liberty but withhold
formal adjudication of guilt; second, how to classify convic-
tions later expunged or covered by some other device for
restoring the person’s civil rights.
Until 1986 both of these issues were handled for pur-
poses of §922(g) and §924(e) under uniform federal law. See
Dickerson v. New Banner Institute, Inc., 460 U.S. 103(1983). In 1986 Congress enacted 18 U.S.C. §921(a)(20),
which reads:
What constitutes a conviction of such a crime shall
be determined in accordance with the law of the
jurisdiction in which the proceedings were held.
Any conviction which has been expunged, or set
aside or for which a person has been pardoned or
4 No. 02-2994
has had civil rights restored shall not be considered
a conviction for purposes of this chapter, unless
such pardon, expungement, or restoration of civil
rights expressly provides that the person may not
ship, transport, possess, or receive firearms.
This resolves the first issue (diversionary and deferred
dispositions) under state law, while the second (the effect
of expungement) now depends on a mixture of state and
federal law: state law controls, but only if it meets the
federal standard of explicitness with respect to firearms
disabilities. See Caron v. United States, 524 U.S. 308(1998).
Immigration law went at this differently. The Board of
Immigration Appeals decided to craft a federal common-
law definition of “conviction” for state judgments, with
one exception: first offenders charged with simple pos-
session. With respect to these, the Board asked whether
the state’s disposition would have been a “conviction” if
the prosecution had been in a federal court that elected
to use 18 U.S.C. §3607(a). This provides that, with the
agreement of the accused, the federal judge may
place him on probation for a term of not more
than one year without entering a judgment of
conviction. At any time before the expiration of
the term of probation, if the person has not violated
a condition of his probation, the court may, without
entering a judgment of conviction, dismiss the
proceedings against the person and discharge him
from probation. At the expiration of the term of
probation, if the person has not violated a condi-
tion of his probation, the court shall, without
entering a judgment of conviction, dismiss the
proceedings against the person and discharge him
from probation.
No. 02-2994 5
A disposition under this provision “shall not be considered
a conviction for the purpose of a disqualification or a dis-
ability imposed by law upon conviction of a crime, or for any
other purpose.” 18 U.S.C. §3607(b). The Board thought that
what was mete for persons accused in federal court should
go for those accused in state court as well. See, e.g., Matter
of A-F-, 8 I&N Dec. 429, 445-46 (BIA, AG, 1959); Matter of
Ozkok, 19 I&N Dec. 546, 551-52 (BIA 1988); Matter of
Manrique, 21 I&N Dec. 58, 64 (BIA 1995). The upshot was
that all first offenders, state and federal, were analyzed
under the approach of §3607(a), while all repeat offenders
were treated as “convicted” whether or not they entered a
diversionary program, and whether or not their civil rights
had been restored at the conclusion of their sentences.
After the adoption of a federal definition in 1996, how-
ever, the Board of Immigration Appeals concluded that
this new definition controls uniformly. In Matter of Roldan,
22 I&N Dec. 512 (BIA 1999), the Board held that the
criteria of §1101(a)(48)(A) apply to all offenders, no matter
how they would have been treated if they had been charged
in federal court and the judge had elected to resolve the
prosecution under §3607(a). The ninth circuit set aside
the decision in Roldan and forbade the Board to alter its
pre-1996 policy for first offenders. See Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000). The Board has declined
to acquiesce in Lujan-Armendariz and will not apply it
outside the ninth circuit. See Matter of Salazar-Regino, 23
I&N Dec. 223 (BIA 2002). Every court that has considered
the subject believes that §1101(a)(48)(A) governs the
handling of repeat offenders and that expungements (or
restorations of civil rights) under state law do not negate a
“conviction” for purposes of immigration law. See Herrera-
Inirio v. INS, 208 F.3d 299 (1st Cir. 2000); United States v.
Campbell, 167 F.3d 94 (2d Cir. 1999); Renteria-Gonzalez v.
INS, 322 F.3d 804, 812-14 (5th Cir. 2002); Murillo-Espinoza
v. INS, 261 F.3d 771 (9th Cir. 2001). But Lujan-Armendariz
6 No. 02-2994
holds that first offenders are entitled to the benefit of the
pre-1996 policy despite the enactment of §1101(a)(48)(A).
If Lujan-Armendariz is right, then §1101(a)(48)(A) is
ineffectual—for it codifies the Board’s pre-1996 policy with
respect to other diversionary dispositions and expunge-
ments. Depriving a statute of any consequence is se-
rious business, which Lujan-Armendariz did not ade-
quately justify. Its theme, which Gill repeats, is that
§1101(a)(48)(A) does not in terms repeal §3607, and, as
repeals by implication require a square conflict, see J.E.M.
Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534
U.S. 124, 141-44 (2001) (collecting authority), §3607(b)
remains in force. The agency complains that the ninth
circuit has invaded its interpretive authority. It is unnec-
essary for us to determine how far Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837(1984), applies to the Board’s adjudicatory (as opposed to
rulemaking) decisions after United States v. Mead Corp.,
533 U.S. 218 (2001); the agency is still entitled to a sig-
nificant measure of discretion. See INS v. Ventura, 537 U.S.
12 (2002); INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).
Precisely how much interpretive leeway it possesses is
irrelevant today, however; the Board’s current approach is
a straightforward application of §1101(a)(48)(A), which
abolishes, for purposes of immigration law, any distinc-
tion between the treatment of deferred dispositions in
first and successive drug-possession offenses.
It makes no difference, for state offenders such as
Gill, whether §3607 has been repealed by implication,
because that law applies only to persons prosecuted in
federal courts. Until 1996 the Board adapted its ap-
proach to state-law deferred dispositions, not as a matter
of statutory command, but as a matter of federal common
law. It might have changed that approach by the same
means it had been adopted: administrative adjudication.
Congress took the issue out of its hands in 1996. A statute
No. 02-2994 7
such as §1101(a)(48)(A) displaces common law. See Bank
of Nova Scotia v. United States, 487 U.S. 250, 255 (1988);
United States v. Payner, 447 U.S. 727 (1980). In the absence
of legislation the agency had to find its own way; now the
agency must take the statute’s path. Lujan-Armendariz
disregarded the distinction between persons charged in
federal court, and thus covered by §3607, and those charged
in state court, and thus covered (until 1996) only by the
Board’s nonstatutory extension of its approach. After the
enactment of §1101(a)(48)(A), however, this difference may
be dispositive.
Whether §3607 has been limited by implication matters
only to a person sentenced under §3607, which Gill was
not. We say “limited” rather than “repealed” because
§1101(a)(48)(A) affects only immigration matters; even if
a disposition under §3607 counts as a conviction in immi-
gration law, it would not be a conviction for other pur-
poses, such as firearms disabilities. Thus §1101(a)(48)(A)
and §3607(b) may coexist, though the former reduces
the domain of the latter. Gill’s situation does not oc-
casion a definitive resolution of the relation between
§1101(a)(48)(A) and §3607(b), however. It is enough to say
that §3607 has no residual effect on the appropriate
characterization of state-law deferred dispositions. These
are handled comprehensively, and exclusively, by
§1101(a)(48)(A).
Gill does not deny that “410 probation” is a “conviction”
under the text of §1101(a)(48)(A). The holding of Lujan-
Armendariz, which elevates an abandoned administrative
practice over a statutory text, is untenable, and we decline
to follow it. Because this decision creates a conflict among
the circuits, it was circulated before release to all active
judges. See Circuit Rule 40(e). No judge favored a hearing
en banc.
The petition for review is dismissed for want of jurisdic-
tion.
8 No. 02-2994
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-8-03