Griffiths v. Immigration & Naturalization

• Decision Date: 09 February 2001
• Docket Number: No. 00-1694,00-1694
• Citation: 243 F.3d 45
• Parties: (1st Cir. 2001) ALWYN COLIN GRIFFITHS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 45

243 F.3d 45 (1st Cir. 2001)

ALWYN COLIN GRIFFITHS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 00-1694

United States Court of Appeals For the First Circuit

Heard February 9, 2001

Decided March 16, 2001

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

[Copyrighted Material Omitted]

Richard L. Iandoli for petitioner.

David M. McConnell, Office of Immigration Litigation, Civil Division, with whom David W. Ogden, Assistant Attorney General, Civil Division, Michael P. Lindemann, Assistant Director, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Boudin, Stahl and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

The Board of Immigration Appeals found that Alwyn Colin Griffiths had been "convicted" of a firearms violation and ordered him deported under § 241(a)(2)(C) of the Immigration and Nationality Act of 1952, previously codified at 8 U.S.C. § 1251(a)(2)(C). The BIA also denied his request for discretionary relief from deportation. Griffiths challenges whether the "guilty-filed" disposition of his firearms violation under Massachusetts law was sufficiently final to constitute a "conviction" within the meaning of the INA. Petitioner also challenges the BIA's failure to address his request for a § 212(h) waiver and the denial of his request for voluntary departure under § 242. We remand the case to the BIA.

I.

Griffiths, a citizen of Jamaica, has lived as a lawful resident in this country since 1985. He is the son of a U.S. citizen mother and a lawful permanent resident father, and is the father of three minor U.S. citizen children.

In 1990, at eighteen years of age, Griffiths was charged in the Dorchester District Court with carrying a firearm without a license and unlawful possession of ammunition, in violation of section 10 of Chapter 269 of the Massachusetts General Laws. On January 7, 1991, he was convicted and sentenced to one-year's probation, as well as a suspended six-month term of imprisonment.

On September 19, 1991, the INS ordered Griffiths to show cause why he should not be deported under former § 241(a)(2)(C) of the INA, 8 U.S.C. § 1251(a)(2)(C), based on this firearms conviction.¹ At the deportation hearing on October 19, 1992, Griffiths conceded the INS's factual allegations and deportability, but sought an opportunity to apply for relief from deportation by way of an adjustment of status and a § 212(h) waiver of inadmissibility based on purported hardship to his U.S. citizen family relations. Over the INS's objection, the immigration judge granted a continuance, and Griffiths filed applications for adjustment of status and a § 212(h) waiver.

On April 28, 1993, while his deportation case was continued, the Dorchester District Court granted Griffiths's motion for a new trial on the firearms offense, which had formed the basis for the deportation charge. This was two years after his initial conviction and after he had served his term of probation. The apparent basis for vacating the conviction was uncertainty over whether a deportation warning required by state law had been given. After the initial conviction was vacated, the court reduced the firearms charge from unlawful carrying a firearm to unlawful possession of a firearm, and Griffiths admitted to sufficient facts to support both the revised firearms and the ammunition charges. The criminal court did not impose any additional punishment, but found him guilty and placed the criminal charge "on file."

On April 29, 1993, Griffiths moved to terminate the deportation proceedings against him, contending that he no longer stood convicted as alleged in the order to show cause. He argued to the immigration judge that the "guilty-filed" disposition of the renewed charges was not sufficiently final to support an order of deportation, citing Pino v. Landon, 349 U.S. 901 (1955). Petitioner contended that that disposition of the criminal charge did not qualify as a conviction under the definition set forth in the BIA decision, Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), which governed at the time. The INS countered that the portion of the definition in Matter of Ozkok relied on by petitioner in fact governed only cases where adjudication of guilt was deferred and thus there was no "formal judgment of guilt" entered, while in this case the criminal court entered a formal finding of "guilty," a finding which was sufficient to support a charge of deportability. On May 7, 1993, the immigration judge found that the "guilty-filed" disposition was a conviction, mistakenly denied petitioner a § 212(c) waiver (which is a discretionary waiver based on equitable factors, and for which Griffiths had not applied), denied petitioner's request for voluntary departure, and ordered Griffiths deported. The immigration judge failed to address petitioner's application for a § 212(h) waiver, the waiver for which he actually had applied.

Griffiths timely appealed his deportation order to the BIA, again contending that the "guilty-filed" disposition was not of sufficient finality to constitute a conviction for immigration purposes. While Griffiths's appeal was pending, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), which amended the INA to include (for the first time) a statutory definition of "conviction" for federal immigration purposes. See INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). On May 9, 2000, the BIA dismissed Griffiths's appeal from the order of deportation, agreeing with the INS that the "guilty-filed" disposition was sufficient to support the deportation charges against him under this new statutory definition of conviction. The BIA relied on its intervening determination in Matter of Punu, Int. Dec. 3364, 1998 WL 546634 (BIA 1998), that the statutory definition of "conviction" broadened the scope of "conviction" for immigration purposes to encompass some deferred adjudications, even where the right to further appellate review of the issue of guilt or innocence on such deferred adjudications remained available. The BIA affirmed the immigration judge's denial of a § 212(c) waiver, and found that without such waiver he could not qualify for adjustment of status. Like the immigration judge, the Board failed to address the application for a § 212(h) waiver, nor did it address his request for voluntary departure in lieu of deportation. Griffiths now petitions this court for review of the Board's decision.

II.

A. The Scope of Review

We review de novo an agency's construction of a statute that it administers, although subject to established principles of deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000). Under those principles of deference, if the intent of Congress is clear, it must govern, but where the statute is silent or ambiguous on an issue, the question for the court is whether the agency's interpretation is based on a permissible construction of the statute. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); Herrera-Inirio, 208 F.3d at 304. Since "agency officials acting in the immigration context 'exercise especially sensitive political functions that implicate questions of foreign relations,' deference to administrative expertise is particularly appropriate." Herrera-Inirio, 208 F.3d at 304, quoting INS v. Abudu, 485 U.S. 94, 110 (1988).

B. The Definition of "Conviction" for Immigration Purposes

At issue here is what it means to be "convicted" of an offense within the terms of former § 241(a)(2)(C) of the INA, 8 U.S.C. § 1251(a)(2)(C), now codified at 8 U.S.C. § 1227(a)(2)(C). What it means to be "convicted" of a crime for immigration purposes has been the source of much debate. While the INA compels consideration of various state criminal laws and procedures because it allows state convictions to form the basis for deportation, the question of what constitutes a "conviction" sufficient to afford such a basis is a question of federal, not state, law. See, e.g., White v. INS, 17 F.3d 475, 479 (1st Cir. 1994).

Before the enactment of IIRIRA in 1996, the INA did not provide any statutory definition of "conviction" for immigration purposes. The Supreme Court briefly addressed the meaning of the term in a two-sentence per curiam opinion, Pino v. Landon, 349 U.S. 901 (1955). In that case, the Supreme Court addressed the decision of this court in Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), which found that a criminal conviction placed "on file" in Massachusetts qualified as a conviction for the purposes of the INA. The Supreme Court reversed, holding that "[o]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation" under the INA. 349 U.S. at 901.

The BIA attempted to create uniformity in the treatment of various state methods of disposing of criminal cases by creating a controlling definition of "conviction" for immigration purposes in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), which included a three-part test to apply where adjudication of guilt had been withheld under state procedures.²

This court again addressed the Massachusetts practice of placing criminal cases "on file" in White v. INS, 17 F.3d 475 (1st Cir. 1994), though not in the context of forming the basis of a deportation charge. There we applied the standard set out in Matter of Ozkok and held that, in weighing the equities while considering a § 212(c) waiver, the BIA erred in considering "filed" criminal charges to be convictions for immigration purposes. Id. at 479. See also Molina v. INS, 981 F.2d 14, 18-20 (1st Cir. 1992) (Rhode Island nolo contendere plea plus probation, which was not considered a "conviction" under state law upon completion of probation, was "con...