Windell Javillonar Retuta v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINDELL JAVILLONAR RETUTA, 
Petitioner, No. 04-74855

v. Agency No.
A43-380-112
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 6, 2009—Pasadena, California
Filed January 7, 2010
Before: William A. Fletcher and Richard R. Clifton,
Circuit Judges, and Louis H. Pollak,* District Judge.
Opinion by Judge Louis H. Pollak
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
497
500 RETUTA v. HOLDER
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Bryan Stuart Beier, US DEPARTMENT OF JUSTICE,
Washington, D.C., for the respondent.
OPINION
POLLAK, District Judge:
Windell Javillonar Retuta petitions for review of a decision
of the Board of Immigration Appeals (BIA) affirming the
Immigration Judge’s (IJ) order that Retuta was removable
under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been con-
victed of a controlled substance violation.
RETUTA v. HOLDER 501
In addressing Retuta’s petition, we consider two issues
relating to the government proving a “conviction” to establish
an alien’s removability. First, we determine whether the min-
ute order that the government relied on, which contained acro-
nyms, is sufficiently clear evidence of a criminal conviction
in removal proceedings, in light of our recent en banc deci-
sion in United States v. Snellenberger, 548 F.3d 699 (9th Cir.
2008), that found minute orders sufficient evidence of a con-
viction during federal sentencing proceedings. Second, turn-
ing to the substance of the conviction at issue, we must
determine whether the definition of a “conviction” in 8 U.S.C.
§ 1101(a)(48) includes a judgment that withholds an adjudica-
tion of guilt and imposes a sanction other than incarceration—
namely a small fine—and simultaneously suspends or stays
execution of that sanction. Section 1101(a)(48) defines “con-
viction” to include proceedings where a formal judgment of
guilt has been withheld provided that (1) there has been a
finding of guilt or admission of sufficient facts for a finding
of guilt, and (2) “some form of punishment, penalty, or
restraint on the alien’s liberty” has been imposed. 8 U.S.C.
§ 1101(a)(48)(A). The definition clarifies that suspended peri-
ods of incarceration must be considered, id. § 1101(a)(48)(B),
but does not address whether immigration consequences
attach to the suspension of non-incarceratory punishments.
I. Background
Windell Javillonar Retuta is a twenty-seven-year-old citi-
zen and national of the Philippines who was admitted into the
United States as a lawful permanent resident alien on June 5,
1992. The Department of Homeland Security (DHS) served
Retuta with a Notice to Appear (NTA) on December 15,
2003, alleging multiple grounds for removal. On January 7,
2004, DHS amended the NTA to bring the total allegations of
prior convictions sufficient for removal to four. DHS alleged
that Retuta was convicted of (1) buying stolen property, in
violation of § 496(a) of the California Penal Code, (2) posses-
sion of a controlled substance, methamphetamine, in violation
502 RETUTA v. HOLDER
of § 11377(a) of the California Health and Safety Code, (3)
use of a controlled substance, in violation of § 11550 of the
California Health and Safety Code, and (4) domestic battery,
in violation of § 242 and § 243(e) of the California Penal
Code.
During removal proceedings before the IJ, the Government
chose to proceed only on the controlled substances violations
and rejected the opportunity to delay the proceedings in order
to submit documentation that would support the other
charges. The IJ addressed only the alleged conviction on
March 11, 2002 for (1) possession of a controlled substance,
methamphetamine, and (2) use of a controlled substance.
Retuta argued that the minute order offered to prove this con-
viction was insufficient because the order was incomprehensi-
ble due to unexplained acronyms. The IJ determined that the
minute order and criminal complaint sufficiently proved the
fact of Retuta’s conviction and, thus, DHS had met its burden
of proving Retuta removable by clear and convincing evi-
dence. The IJ further stated that because Retuta had previ-
ously been granted cancellation of removal and because the
conviction at issue occurred after the cancellation of removal,
he was not eligible for a second cancellation of removal.
Based on his new controlled substance violations, Retuta was
ordered removed to the Philippines.
On August 26, 2004, Retuta filed an appeal with the Board
of Immigration Appeals. Retuta argued to the BIA that: (1)
the minute order was insufficient to sustain the charge of
removal; (2) the controlled substances violations only resulted
in a stayed fine that did not rise to the level of a “punishment,
penalty or restraint on [his] liberty” under 8 U.S.C.
§ 1101(a)(48)(A)(ii); and (3) Retuta’s conviction for posses-
sion and use of a controlled substance might be entitled to
expungement under a state equivalent to the Federal First
Offender Act (FFOA), 18 U.S.C § 3607.
The BIA dismissed the appeal. The BIA ruled that the min-
ute order and criminal complaint established that Retuta had
RETUTA v. HOLDER 503
pled guilty to possession of methamphetamine, a controlled
substance. The BIA did not refer to the additional count con-
tained in the minute order of use of a controlled substance.
The BIA also ruled that a fine, even if suspended, is a “pun-
ishment” within the meaning of 8 U.S.C. § 1101(a)(48)(A)(ii).
Lastly, it found that Retuta’s prior drug convictions rendered
him ineligible for relief from removal under the provisions of
the FFOA.
In making its determination that Retuta pled guilty to pos-
session of methamphetamine, the BIA examined the minute
order, which contains numerous abbreviations without any
key to decode them. The minute order is a preprinted form
with various boxes and blanks. The order has the boxes
checked for “Atty Present,” “COP PLEADS,” “GUILTY,”
“DEJ Granted,” and “FINE STAYED.” “DRF” is circled with
$100 written next to it. The BIA stated that the minute order,
though perhaps “confusing,” was “not incomprehensible” and
was sufficiently informative to establish that Retuta had pled
guilty to possession of a controlled substance. The BIA found
the document proved that Retuta pled guilty to possession of
a controlled substance with a deferred entry of judgment and
a suspended fine.
To find that a stayed fine constituted a “conviction” within
the meaning of section 1101(a)(48), the BIA concluded that
“[t]he imposition of a fine, regardless of if it is stayed, consti-
tutes some form of punishment.” To support this position, the
BIA cited its prior decision in Matter of Ozkok, 19 I. & N.
Dec. 546 (BIA 1988), for the proposition that a “suspended
fine [is] sufficient to find the existence of a conviction.”
The BIA also decided that Retuta could not take advantage
of the FFOA, which allows a single conviction for possession
of a controlled substance to be expunged, thus not rendering
an immigrant removable. In determining whether Retuta’s
conviction qualified under the FFOA, the BIA relied upon a
computer printout of Retuta’s criminal history, commonly
504 RETUTA v. HOLDER
referred to as a rap sheet. The rap sheet shows other convic-
tions for possession of a controlled substance.
II. Jurisdiction and Standard of Review
This court has jurisdiction to review a final order of
removal under 8 U.S.C. § 1252(a). A court of appeals reviews
questions of law de novo. Chuyon Yon Hong v. Mukasey, 518
F.3d 1030, 1034 (9th Cir. 2008). Questions of law include
“not only ‘pure’ issues of statutory interpretation, but also
application of law to undisputed facts, sometimes referred to
as mixed questions of law and fact.” Ramadan v. Gonzales,
479 F.3d 646, 648 (9th Cir. 2007) (per curiam) (citations
omitted). The government bears the burden of proving by
clear, unequivocal, and convincing evidence that the alien is
removable. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th
Cir. 2007).
III. Discussion
A. Was the Minute Order Sufficient Proof of the Outcome
of the State Court Proceedings?
Retuta argues that the minute order used to prove his 2002
conviction for possession of a controlled substance was insuf-
ficient to prove the fact of his conviction by the required
clear, unequivocal, and convincing evidence standard because
the minute order contains several unexplained acronyms. The
BIA addressed this argument and noted that “[a]lthough the
document may be confusing, it is not incomprehensible and
it contains sufficient information to determine that the respon-
dent pled guilty to possession of a controlled substance under
section 11377(a) of the California Health and Safety Code.”
We find that the BIA did not err in its conclusion.
[1] First, the INA makes clear that “[o]fficial minutes of a
court proceeding” are sufficient “proof of a criminal convic-
tion.” 8 U.S.C. § 1229a(c)(3)(B)(iv). Additionally, in United
RETUTA v. HOLDER 505
States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en
banc), this court recently addressed the analogous question of
whether a California state court minute order sufficiently
proved a conviction, resulting in a career offender sentencing
enhancement. There, we held that the minute order described
the conviction with sufficient reliability that it could be used
for sentencing. Id. at 702.
[2] The minute order here does not present enough ambigu-
ity to prevent us from applying Snellenberger in the context
of proving a conviction in immigration proceedings. While
the minute order would be clearer with an explanation of its
acronyms, it contains standard terms that support a conclusion
that Retuta was convicted of possession of a controlled sub-
stance.1 The minute order has boxes checked for “PLEADS,”
“GUILTY,” and “DEJ Granted.” Under “Violation” the order
states that “HS11377(A)” was Count Two. The record con-
tains the criminal complaint, which lists possession of a con-
trolled substance in violation of § 11377(a) of the California
Health and Safety Code as Count Two. One does not need a
definition of the terms used to conclude that Retuta pled
guilty and received a deferred entry of judgment (DEJ) for
violation of California laws relating to the possession of a
controlled substance.
[3] Similarly, the minute order sufficiently states Retuta’s
sentence. The minute order lists “$100” after circling “DRF.”
Retuta argued that the minute order does not make clear
whether the $100 listed was for a fine, fee, or civil restitution.2
1
Because the BIA’s opinion does not explicitly incorporate the IJ’s
determination that Retuta was also convicted of one count of use of a con-
trolled substance, we do not address that determination.
2
The government in a Rule 28(j) letter claimed that Matter of Cabrera,
24 I. & N. Dec. 459 (BIA 2008), rendered irrelevant whether the amount
was for a fine, fee, or restitution, as all may be considered punitive by the
BIA. In Cabrera, the BIA found that mandatory costs were a “punish-
ment” or “penalty,” and indicated restitution to be the same. Id. at 461-62.
We need not decide whether we must give deference to BIA’s decision in
Cabrera that costs or restitution are sufficiently punitive to be a “punish-
ment” or “penalty,” as the minute order clearly states the amount involved
to be a fine.
506 RETUTA v. HOLDER
While that alone could be ambiguous, the order seven lines
below states “FINE STAYED 5-31-02.” Like any other
record of a sentence, we must give the term “fine” its logical
meaning, a monetary sanction. A judge preparing any judicial
document, be it a minute order or a published opinion, would
likely not feel the need to clarify the term “fine.” Thus, we
conclude that the minute order adequately proves that Retuta
pled guilty and received a sentence of a stayed fine. However,
the conclusion that the government adequately proved what
occurred during the criminal proceedings of March 11, 2002
does not compel us to find Retuta can be removed. The min-
ute order proves that Retuta pled guilty to violating California
law, but it does not show, without more, that this violation
resulted in a “conviction” under the Immigration and Nation-
ality Act.
B. Does the Definition of “Conviction” in 8 U.S.C.
§ 1101(a)(48) Include Deferred Entry of Judgment
Where the Sentence is a Stayed Fine?
For his second argument, Retuta challenges the BIA’s con-
clusion that a deferred entry of judgment, where the only con-
sequence is a stayed fine, constitutes a “conviction” as
defined under the INA, 8 U.S.C. § 1101(a)(48). The BIA
rejected Retuta’s argument by relying on its own decision in
Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), which pre-
ceded Congress’s 1996 codification of a definition of “convic-
tion.”
[4] Congress amended Title 8 in the Illegal Immigrant
Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
to define what characteristics a criminal judgment must have
before it qualifies as a “conviction” under the INA. Section
1101(a)(48) provides:
(A) The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien entered
RETUTA v. HOLDER 507
by a court or, if adjudication of guilt has been with-
held, 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.
(B) Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed to
include the period of incarceration or confinement
ordered by a court of law regardless of any suspen-
sion of the imposition or execution of that imprison-
ment or sentence in whole or in part.
8 U.S.C. § 1101(a)(48). Thus, the government must show two
things when a formal adjudication of guilt has been withheld:
(1) a finding of guilt or sufficient facts to support such a find-
ing, and (2) some punishment, penalty, or restraint on liberty
(which includes suspended incarceratory sentences).
[5] Prior to the 1996 Amendment, the INA did not define
the elements of a conviction. The issue was instead governed
by the BIA’s decision in Matter of Ozkok, which Congress, in
passing IIRIRA in 1996, intended partially to adopt and par-
tially to overrule. H.R. Rep. No. 104-828, at 224 (1996)
(Conf. Rep.). The BIA in Ozkok had established a three-part-
test for determining if there is a “conviction”:
(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;
508 RETUTA v. HOLDER
(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 sus-
pension of a driver’s license, deprivation of nones-
sential 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 proba-
tion or fails to comply with the requirements of the
court’s order, without availability of further proceed-
ings regarding the person’s guilt or innocence of the
original charge.
Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 (BIA 1988).
The IIRIRA Amendment to the INA expanded on what cate-
gories of deferred adjudications can constitute convictions:
Without question, the new definition eliminated the
distinction between the different types of deferred
adjudication statutes set forth in the third prong of
the Ozkok definition. It is clear that Congress
intended the new definition to mean, generally, that
a conviction occurs prior to the time the probationary
period begins in cases processed under state deferred
adjudication laws, regardless of whether the state
statute requires further proceedings prior to the for-
mal entry of a judgment of conviction in the event of
a probation violation.
Lujan-Armendariz v. I.N.S., 222 F.3d 728, 742 (9th Cir.
2000). In Lujan-Armendariz, we noted that “Congress
adopted verbatim the first two sub-parts of the Ozkok defini-
tion.” Id.
RETUTA v. HOLDER 509
1. Is there Binding Agency Precedent On-Point,
Requiring Our Deference?
[6] The BIA’s opinion and the government on appeal both
argue that this case must be resolved by deferring to the
BIA’s opinion in Matter of Ozkok. This court must give defer-
ence under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), to the “agency’s
construction of the statute [that] it administers.” Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th Cir. 2005).
However, in order to be entitled to Chevron deference, the
agency’s construction must have been issued in “binding
agency precedent on-point (either in the form of a regulation
or a published BIA case).” Kyung Park v. Holder, 572 F.3d
619, 623-24 (9th Cir. 2009) (internal quotations and citations
omitted). Two factors require us to conclude that Ozkok is not
“binding agency precedent on-point.” First, Congress enacted
the IIRIRA Amendment subsequent to Ozkok, so the language
of Ozkok is no longer binding, at least insofar as it is not con-
sistent with the text of the IIRIRA Amendment. Second,
Ozkok did not address the particular situation present here—
namely, whether a suspended fine is sufficient punishment to
satisfy the definition of conviction. Ozkok addressed the
imposition of probation and the actual enforcement of non-
incarceratory penalties, but not the “imposition” of suspended
non-incarceratory penalties. See Ozkok, 19 I. & N. Dec. at
551-553.
The government, in a Rule 28(j) letter of September 25,
2009 to the court, argues that the BIA’s opinion in Matter of
Cabrera, 24 I. & N. Dec. 459 (BIA 2008), removed any doubt
that Retuta was “convicted” in the meaning of section
1101(a)(48). However, Cabrera, like Ozkok, only addresses
sanctions actually imposed—in that instance, $458 in manda-
tory costs and surcharges, which it found to be a “punish-
ment” or “penalty.” Id. at 460. The opinion does at one point
obliquely suggest that the fact that there must be consider-
ation of ability to pay before enforcing collection of costs
510 RETUTA v. HOLDER
imposed on Cabrera “does not mean their imposition is not a
punishment.” Id. at 462. Even if we were to accept, arguendo,
the contention that the statute can permissibly be construed to
regard the imposition of a small monetary sanction as a “pun-
ishment” or “penalty,” Cabrera would not guide our decision
here, since Retuta’s fine was entirely stayed without specifi-
cation of any conditions on the stay. Thus, Chevron does not
dictate our determination of what, in the present context, the
statute must be taken to mean. We must construe the statute
for ourselves.
2. Does the Definition of “Conviction” Exclude Judg-
ments Where the Sentence is the Suspension of a
Non-Incarceratory Sanction?
Retuta claims that, because the text of 8 U.S.C.
§ 1101(a)(48) specifically includes suspended periods of
incarceration, it was intended to also exclude suspended sen-
tences that do not involve a prison sentence. See 8 U.S.C.
§ 1101(a)(48)(B). The government, at oral argument, con-
tended that the definition of “conviction” includes non-
incarceratory suspended sentences because § 1101(a)(48)(B)
should not be read to modify the preceding subsection. The
government argues that subsection (B) was intended for the
limited purpose of clarifying that, when immigration conse-
quences attach to a period of incarceration, the entire sentence
should be used, even if part of the period of incarceration has
been suspended. According to the government, because sub-
section (B) was intended for this purpose it should not be read
to limit the preceding subsection.
When dealing with a matter of statutory interpretation,
“ ‘we look first to the plain language of the statute, construing
the provisions of the entire law, including its object and pol-
icy, to ascertain the intent of Congress.’ ” United States v.
Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (quoting
Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th
Cir. 1996)).
RETUTA v. HOLDER 511
Our reading of § 1101(a)(48) leads us to conclude that the
definition of “conviction” does not include criminal judg-
ments whose only consequence is a suspended non-
incarceratory sanction. Our reading of subsection (A) and of
subsection (B) confirms that an unconditional non-
incarceratory suspended sanction cannot be a predicate for a
“conviction.”
[7] The text of subsection (A) does not include suspended
non-incarceratory punishments. Congress placed the provision
in section 1101, which contains an exhaustive list of defini-
tions for use in construing the INA. Subsection (A)(ii)
requires a “conviction” to have some punitive aspect by man-
dating that “the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.”
Congress adopted this exact phrasing from the BIA’s Ozkok
opinion. Ozkok, 19 I. & N. Dec. at 551-52. At the same time
Congress omitted a list of exemplars included in Ozkok. We
must conclude that Congress intentionally omitted the exem-
plars, which included several minor sanctions such as “revo-
cation or suspension of a driver’s license, deprivation of
nonessential activities or privileges, or community service.”3
The minute order here required less from petitioner Retuta
than any of the exemplars in the Ozkok opinion that Congress
chose not to adopt. In fact, the minute order requires nothing
of Retuta. He suffered no loss of wealth, nor loss of liberty.
3
The BIA’s second prong read in its entirety: “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 pro-
gram, a work-release or study-release program, revocation or suspension
of a driver’s license, deprivation of nonessential activities or privileges, or
community service).” Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 (BIA
1988). Congress appears not to have been the only body that found attach-
ing removability to minor sanctions troublesome. See Romero v. Holder,
568 F.3d 1054, 1058 (9th Cir. 2009) (noting that the IJ found that requir-
ing enrollment in a three-month AIDS education program was not a “form
of punishment, penalty, or restraint on the alien’s liberty”).
512 RETUTA v. HOLDER
Finding the suspended fine at issue here to be a sufficient
basis for removal would render the requirement of a “punish-
ment, penalty, or restraint on the alien’s liberty” nearly mean-
ingless. Cf. De Vega v. Gonzales, 503 F.3d 45, 49 (1st Cir.
2007) (focusing on whether a monetary sanction must be
actually paid when considering whether it is a “punishment”
or “penalty” as a predicate for ruling that restitution is a “pun-
ishment or “penalty” because “fail[ure] to make her payments
. . . could ripen into a guilty plea and [the alien] would be sub-
ject to further punishment.”). Congress, legislating in the
wake of Ozkok, could, had it wished to do so, have reduced
the showing needed for a “conviction” to a mere finding of
guilt, regardless of whether a sanction was imposed, but
instead it chose to retain the requirement of a punishment,
penalty, or restraint on liberty.
[8] Furthermore, lest there were doubt as to subsection
(A)’s meaning, Congress addressed the suspension of sanc-
tions in subsection (B), choosing to include only suspended
incarceratory sentences. By stating that suspended periods of
imprisonment should be considered regardless of suspension,
the statute makes clear that suspended sentences that are not
periods of imprisonment are not included as punishments,
penalties, or restraints on liberty. The placement of both sub-
sections (A) and (B) in section 1101(a)(48) indicates they
should be read together, as Congress could have placed sub-
section (B) in a section apart from the definition of conviction
if its purpose was independent. Subsection (B), thus, modifies
subsection (A)’s test of conviction to include a suspended
period of incarceration as a “punishment, penalty, or restraint
on the alien’s liberty.” See Francis v. Gonzales, 442 F.3d 131,
140 (2d Cir. 2006) (citing subsection (B) as intending to mod-
ify the definition of “conviction” developed in Ozkok). Sub-
section (B) therefore confirms that the text of section
1101(a)(48) excludes from the definition of “conviction”
deferred judgments of guilt that only result in suspended non-
incarceratory sentences.
RETUTA v. HOLDER 513
[9] In short, we think it clear that § 1101(a)(48) does not
contemplate that one who has been the object of a suspended
fine is to be deemed to have suffered a “conviction.” We
would add, however, that if we were to view the statute as
ambiguous, we would think it our duty to resolve the ambigu-
ity favorably to the alien, pursuant to the principle of lenity
applicable with respect to the gravity of removal. See I.N.S.
v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Lara-Cazares
v. Gonzales, 408 F.3d 1217, 1221 (9th Cir. 2005). Removal
is a harsh sanction, and profoundly so when, as here, the alien
came to America as a small child and has spent almost two
decades in this country.
[10] We must decide whether Retuta suffered any punish-
ment, penalty, or restraint on his liberty when his non-
incarceratory fine was stayed without any conditions placed
on him during its abeyance.4 We find he did not.
4
The government urges us to remand to the BIA based on I.N.S. v.
Orlando Ventura, 537 U.S. 12 (2002), for the BIA to reconsider whether
a suspended non-incarceratory punishment is sufficiently punitive to meet
the definition of conviction in 8 U.S.C. § 1101(a)(48). Remand under Ven-
tura is required when an agency has not made a determination so the court
can gain the advantage of the agency’s expertise in the area and its
informed discussion and analysis. Ventura, 537 U.S. at 17. We find Ven-
tura inapposite to the situation before us.
Unlike Ventura where this court made a determination on a fact-
dependent matter of first impression that the BIA failed to reach, id. at 15,
here, the BIA considered and ruled on the issue. The BIA concluded that
Ozkok governed and that Ozkok found a suspended fine to be punitive. The
fact that Ozkok preceded Congress’s definition of conviction and does not
address suspended fines does not mean the BIA failed to take a position
on the issue. The BIA did take a position on the issue and it is one with
which, as explained above, we do not agree. Remand is not appropriate
when the BIA addressed an issue and its opinion is reversed. See Li v. Ash-
croft, 356 F.3d 1153, 1161 n.7 (9th Cir. 2004). The parties filed supple-
mental briefs regarding the impact of the BIA’s decision not to rehear
Retuta’s appeal following our Snellenberger decision. Because the BIA’s
denial of rehearing addressed only the first point regarding the clarity of
the minute order, we have given it no weight when considering remand of
the section 1101(a)(48) issue.
514 RETUTA v. HOLDER
C. Does Federal First Offender Act Apply?
Lastly, Retuta has challenged the BIA’s finding that he was
ineligible for relief under the FFOA because his rap sheet
refers to other controlled substance convictions. Because we
find that the government did not show Retuta to be remov-
able, we need not address whether the FFOA could provide
him with relief.
Conclusion
[11] We hold that the minute order was sufficient to estab-
lish by clear, unequivocal, and convincing evidence that
Retuta pled guilty to the charge of possession of a controlled
substance and received a sentence of a suspended fine. We
further hold that an unconditional suspended non-
incarceratory sanction that has no present effect is not a pun-
ishment, penalty, or restraint of liberty under 8 U.S.C.
§ 1101(a)(48). Thus, the government has failed to prove
Retuta was “convicted” of a controlled substance offense and,
therefore, he has not been shown to be subject to removal.
Because the Government presented no evidence sufficient to
establish that Retuta was subject to removal, we grant the
petition for review, reverse the order of removal, and remand
to the Board for disposition consistent with this opinion.
Petition GRANTED and REMANDED.