Crespo v. Holder

• Citation: 631 F.3d 130
• Decision Date: 11 January 2011
• Docket Number: No. 09–2214.,09–2214.
• Parties: Franklin Eduardo CRESPO, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

631 F.3d 130

Franklin Eduardo CRESPO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–2214.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2010.Decided: Jan. 11, 2011.

ARGUED: Dree Kristin Collopy, Maggio & Kattar, Washington, D.C., for Petitioner. James Eugene Grimes, Jr., United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.Petition for review granted by published opinion. Judge SHEDD wrote the opinion, in which Judge DUNCAN and Senior Judge HAMILTON joined.

OPINION

SHEDD, Circuit Judge:

Franklin Eduardo Crespo, a citizen and native of Peru, petitions for review of the denial of his 8 U.S.C. § 1182(h) waiver. Crespo contends that the Board of Immigration Appeals (BIA) erred in determining that a 1997 adjudication under Virginia Code § 18.2–251 for possession of marijuana qualified as a “conviction” under 8 U.S.C. § 1101(a)(48)(A). Because the plain language of § 1101(a)(48)(A) does not encompass Crespo's 1997 adjudication, we grant the petition for review and remand the case to the BIA for further proceedings.

I.

Crespo entered the United States with a B–2 tourist visa in 1997. He overstayed this visa and remained in the United States, where he eventually married Diane Marie Duran, a United States citizen. Duran filed an I–130 Petition for Alien Relative on Crespo's behalf but, at some point, the marriage dissolved and the Immigration and Naturalization Service (INS) denied the petition.

In response, the INS issued Crespo a “notice to appear” on October 24, 2000, and later detained him in 2006 after Crespo pled guilty to assault and battery in Fairfax, Virginia. In 2001, prior to his detention, Crespo fathered a child with Rachel Crawford, a United States citizen. Following his release from detention in September 2006, he and Crawford married.

In January 2007, Crawford filed an I–130 Petition for Alien Relative on behalf of Crespo, and Crespo filed an I–485 Application to Adjust Status. After the I–130 petition was approved, Crespo sought a § 212(h) waiver ¹. Crespo's case was assigned to an Immigration Judge (IJ), who heard testimony regarding Crespo's good character from Crawford, Crespo's criminal defense attorney, and Crespo's sister. In a written decision, the IJ determined that Crespo was ineligible for § 212(h) relief because he had two convictions for marijuana possession: October 24, 1997 in Virginia and January 31, 2005 in Washington, D.C. Relevant here, the IJ determined that Crespo's 1997 prosecution, which occurred pursuant to Virginia Code § 18.2–251, counted as a “conviction” for immigration purposes under 8 U.S.C. § 1101(a)(48)(A) even though it was a deferred adjudication. In the alternative, the IJ concluded that Crespo did not warrant a waiver under § 212(h) because he failed to satisfy the extreme hardship standard.

Crespo filed a timely appeal with the BIA. The BIA dismissed Crespo's appeal, agreeing with the IJ that the 1997 adjudication counted as a “conviction” and that Crespo was thus ineligible for a § 212(h) waiver. The BIA further concluded that it “need not address” whether Crespo satisfied the extreme hardship standard in § 212(h) or otherwise merited discretionary relief. (J.A. at 4). This petition for review followed.

II.

In his petition, Crespo challenges the BIA's determination that his 1997 adjudication under Virginia Code § 18.2–251 constitutes a conviction under § 1101(a)(48)(A). This challenge raises a purely legal question regarding the BIA's interpretation of an immigration statute and our review is thus subject to the familiar standard of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “Under this standard, we initially examine the statutory language, and if Congress has spoken clearly on the precise question at issue, the statutory language controls; however, if the statute is silent or ambiguous, we defer to the BIA's interpretation if it is reasonable.” Ramirez v. Holder, 609 F.3d 331, 334 (4th Cir.2010).

A.

Crespo argues that the plain language of § 1101(a)(48)(A) supports his argument that his adjudication does not constitute a “conviction.” In contrast, the Government contends that the unambiguous language supports the BIA's conclusion and that, to the extent the statute is ambiguous, the BIA's interpretation is reasonable given Congressional intent.

“When interpreting statutes we start with the plain language.” U.S. Dep't of Labor v. N.C. Growers Ass'n, 377 F.3d 345, 350 (4th Cir.2004). “It is well established that when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.” Lamie v. United States Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks omitted). In interpreting the plain language of a statute, we give the terms their “ordinary, contemporary, common meaning, absent an indication Congress intended [it] to bear some different import.” North Carolina ex rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir.2008) (internal quotation marks omitted).

We thus start with the language of the relevant statute, which provides:

(48)(A) The term “conviction” means, with respect to an alien, 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).

Section 1101(a)(48)(A) “leaves nothing to the imagination.” Herrera–Inirio v. I.N.S., 208 F.3d 299, 304 (1st Cir.2000). That is, the statute “unambiguously encompasses within the definition of ‘conviction’ situations in which adjudications of guilt have been withheld, as long as the defendant's guilt has been established by a trial, plea, or admission, and a judicial officer orders some form of punishment, penalty, or restraint on the defendant's liberty.” Id.²

Crespo's 1997 adjudication was pursuant to Virginia Code § 18.2–251, which applies to a first offender who “pleads guilty to or enters a plea of not guilty to possession of ... marijuana.” Va.Code Ann. § 18.2–251. After such a plea, “if the facts found by the court would justify a finding of guilt,” the court may, “without entering a judgment of guilt,” instead “defer further proceedings and place” the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth's objection. Crespo was sentenced to one year of probation, which he served without incident.

B.

In his petition for review, Crespo and the Government agree that § 1101(a)(48)(A) creates two prongs for finding a conviction. See also Griffiths v. I.N.S., 243 F.3d 45, 52 (1st Cir.2001). The first prong covers situations in which there has been a “formal judgment of guilt,” a circumstance the parties agree did not occur in this case. Id. The second prong covers deferred adjudications “and requires the presence of additional elements.” Id. “The language of the statute as to the second prong requires two elements—(i) [a] sufficient finding of support for a conclusion of guilt, and (ii) the imposition of some form of punishment.” Id. at 53.

Our review in this case focuses only on the first requirement—whether there was some sufficient finding of guilt to satisfy § 1101(a)(48)(A)(i). A plain reading of the statute confirms that there was not. Subsection (i) specifies five sufficient findings: a finding of guilt by a judge or jury (i.e., a trial), a plea of guilt, a plea of no contest, or an admission by the alien of facts sufficient to find guilt. As Crespo correctly notes, none of these five possibilities occurred in his case because neither a judge nor a jury found him guilty after a trial and he did not plead guilty or no contest or admit to any facts, let alone facts sufficient to warrant a finding of guilt.

For its part, the Government suggests that the judicial finding of facts sufficient to justify a finding of guilt made by the judge under § 18.2–251 is the functional equivalent of a judge finding the alien “guilty” as required under § 1101(a)(48)(A)(i). One difficulty with the Government's argument is that, if the judge finding the alien “guilty” was intended to encompass Crespo's situation then the phrase “or has admitted sufficient facts to warrant a finding of guilt” would be rendered superfluous since an alien's plea of guilty would likewise encompass such an admission. We are loathe to contradict the established principle that “[s]tatutes must be interpreted ... to give each word some operative effect.” See Walters v. Metro. Educ. Enters., 519 U.S. 202, 209, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997). Instead, § 1101(a)(48)(A)(i) is most naturally read to “unambiguously encompass[ ] ... situations in which ... the defendant's guilt has been established by a trial, plea, or admission.” Herrera–Inirio, 208 F.3d at 304 (emphasis added). None of those situations occurred in Crespo's case.

Indeed, the language and design of § 1101(a)(48)(A), in its entirety, makes clear that Congress intended a judge's finding of guilt to be a far different scenario than a judge finding facts sufficient to find guilt. By listing five specific situations which constitute a sufficient finding of guilt, Congress drew a line. The Government may be right that...