Gonzalez v. Sessions

Decision Date27 June 2018
Docket NumberNo. 17-1519,17-1519
Citation894 F.3d 131
Parties Jose Santos Guzman GONZALEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Japheth Nthautha Matemu, MATEMU LAW OFFICE, PC, Raleigh, North Carolina, for Petitioner. Dawn S. Conrad, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Derek C. Julius, Assistant Director, Patricia E. Bruckner, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WYNN, FLOYD, and HARRIS, Circuit Judges.

Petition granted; order reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Floyd and Judge Harris joined.

WYNN, Circuit Judge:

Petitioner Jose Guzman Gonzalez entered the United States illegally in the early 2000s. Several years later, Guzman pleaded guilty in North Carolina state court to misdemeanor possession of a small amount of marijuana. The state court withheld adjudication of guilt, instead entering a verdict of prayer for judgment continued and assessing Guzman $100 in court costs.

The question presented for our review is purely legal: does the imposition of $100 in court costs, assessed attendant to a prayer for judgment continued under North Carolina law, qualify as a "conviction" within the meaning of the Immigration and Naturalization Act (the "Act")? 8 U.S.C. § 1101 et seq. ; id. § 1101(a)(48)(A). The Board of Immigration Appeals (the "Board") held that it does. We disagree. Accordingly, we grant Guzman’s petition for review, reverse the Board’s Order, and remand Guzman’s case for further proceedings consistent with this opinion.


Guzman left his native El Salvador and entered the United States illegally, likely in December 2000. In August 2002, Guzman received a North Carolina citation for misdemeanor possession of up to one-half of an ounce of marijuana, in violation of N.C. Gen. Stat. § 90-95(d)(4). Three months later, Guzman pleaded guilty to the offense in the state district court, sitting in Wake County, North Carolina.1 At that time, the state court entered a verdict of "prayer for judgment continued" and assessed $100 in court costs. The court did not impose restitution or order Guzman to pay a fine.

Thirteen years later—in 2015—the Department of Homeland Security ("Homeland Security") charged Guzman with removability from the United States, a charge that Guzman conceded. However, Guzman applied for cancellation of removal as a non-permanent resident under 8 U.S.C. § 1229b(b)(1). Homeland Security orally moved to pretermit the application, arguing that Guzman’s prior offense for misdemeanor marijuana possession barred cancellation because it satisfied the relevant federal statutory definition of "conviction" for a controlled substance offense. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1101(48)(A).

The Immigration Judge presiding over Guzman’s removal proceedings granted Homeland Security’s oral motion. In particular, the Immigration Judge determined that the state-court resolution of Guzman’s misdemeanor possession charge satisfied the Act’s statutory definition of "conviction" because Guzman had both pleaded guilty to the underlying offense and "paid $100 in costs" attendant to his plea. A.R. 41. As the sole support for this determination, the Immigration Judge cited a 2008 opinion issued by the Board of Immigration Appeals concluding that costs and surcharges imposed in the criminal sentencing context satisfy the Act’s relevant definitions. Id. (citing In re Cabrera , 24 I. & N. Dec. 459, 462 (B.I.A. 2008) ).

Guzman appealed the Immigration Judge’s determination to the Board. The Board summarized and agreed with the Immigration Judge’s analysis, also citing Cabrera as its sole support, and therefore dismissed Guzman’s appeal. Guzman timely sought relief in this Court.


Certain aliens are ineligible for admission to the United States. 8 U.S.C. § 1182. For instance, when, as here, "[a]n alien [is] present in the United States without being admitted or paroled," that alien "is inadmissible." Id. § 1182(a)(6)(A)(i). Accordingly, the government may institute proceedings to remove such inadmissible aliens from the United States. Id. § 1229a. However, an alien charged with removability may apply for cancellation of removal. Id. § 1229b. The alien must satisfy certain criteria to be eligible for cancellation, e.g. , id. § 1229b(b)(1), such as the criterion at issue here—that the alien does not have a prior "conviction" for a controlled substance violation, id. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II). If the government believes the alien does not satisfy all applicable cancellation criteria, it may move to "pretermit" the alien’s application, thereby effectively requesting a determination that the alien is ineligible for cancellation. See In re Castrejon–Colino , 26 I. & N. Dec. 667, 668 (B.I.A. 2015).


The single issue presented for our review is whether the state-court disposition of Guzman’s 2002 offense for misdemeanor possession satisfies the definition of "conviction" as that term is used in the Act’s section governing cancellation of removal.2 8 U.S.C. § 1229b(b)(1)(C). Because this presents a question of statutory interpretation, we review the issue de novo. See Martinez v. Holder , 740 F.3d 902, 909 (4th Cir. 2014). And because only one Board member issued the underlying opinion, the opinion is not one in which the Board "exercis[ed] its authority to make a rule carrying the force of law, and thus ... is not entitled to Chevron deference." Id. at 909–10.3 Instead, we may accord the underlying opinion "modest [ Skidmore ] deference," depending on "the thoroughness evident in [the Board’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Id. at 910 (quoting A.T. Massey Coal Co. v. Holland , 472 F.3d 148, 169 (4th Cir. 2006), and Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ).

The Act provides, in relevant part:

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) (emphases added). The parties agree that Guzman did not have a formal judgment entered against him and that he pleaded guilty to the misdemeanor possession offense. Accordingly, only the second prong of the Act’s definition of a "conviction" when adjudication of guilt has been withheld is at issue—i.e., whether the $100 in costs assessed attendant to Guzman’s guilty plea constitute a "punishment" or "penalty" within the meaning of the Act.4

The Act does not define the terms "punishment" or "penalty," and this Court has not yet addressed whether the imposition of "costs" under North Carolina law constitutes a "punishment" or "penalty" for purposes of the Act. Conceding that this issue is one "of first impression for the Fourth Circuit," the government argues that the "costs" assessed in Guzman’s case are analogous to "fine[s] or restitution," which courts have held, at least in the criminal sentencing context, "constitute[ ] a form of ‘punishment’ or ‘penalty’ " under the Act. Resp’t’s Br. at 16–17. We disagree.

To resolve Guzman’s petition, we must address three issues: (1) the definitions of "punishment" and "penalty," as those terms are used in 8 U.S.C. § 1101(a)(48)(A) ; (2) the import under North Carolina law of a verdict requiring payment of "costs" in conjunction with a prayer for judgment continued; and, (3) in view of those substantive definitions, whether the imposition of costs assessed attendant to a North Carolina disposition of prayer for judgment continued constitutes a "punishment" or "penalty" for purposes of the Act. We examine each issue in turn.


Turning first to the Act’s definition of "punishment" and "penalty," we analyze these terms "start[ing] with the plain language." Crespo v. Holder , 631 F.3d 130, 133 (4th Cir. 2011) (quoting U.S. Dep’t of Labor v. N.C. Growers Ass’n , 377 F.3d 345, 350 (4th Cir. 2004) ). In so doing, "we give the terms their ‘ordinary, contemporary, common meaning, absent an indication Congress intended [them] to bear some different import.’ " Id. (quoting North Carolina ex rel. Cooper v. Tenn. Valley Auth. , 515 F.3d 344, 351 (4th Cir. 2008) ). Applying this well-established interpretive approach, we conclude that a monetary assessment amounts to a "punishment" or "penalty" for purposes of Section 1101(a)(48)(A) if it is principally intended to serve a punitive purpose—that is, if a judge orders the monetary assessment to advance a punitive goal tethered to the defendant’s degree of culpability in light of her specific actions.

Black’s Law Dictionary and Merriam–Webster define "penalty" and "punishment" in similar terms, often using one term to help give meaning to the other. A punishment is "[a] sanction—such as a fine, penalty, confinement, or loss of property, right, or privilege—assessed against a person who has violated the law," Punishment , Black’s Law Dictionary (10th ed. 2014), or "a penalty inflicted by a court of justice on a convicted offender," Webster’s Third New International Dictionary 1843 (Philip Babcock Gove et al. eds., 2002) [hereinafter Webster’s ]. Similarly, a penalty is "[p]unishment imposed on a wrongdoer, usu[ally] in the form of imprisonment or fine," Penalty , Black’s Law Dictionary (10th ed. 2014), or "the suffering in person, rights, or property which is annexed by...

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