Herrera-Inirio v. INS, HERRERA-INIRI

• Decision Date: 09 March 2000
• Docket Number: PETITIONER,No. 99-1852,HERRERA-INIRI,99-1852
• Citation: 208 F.3d 299
• Parties: (1st Cir. 2000) LUIS AQUILES, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 299

208 F.3d 299 (1st Cir. 2000)

LUIS AQUILES HERRERA-INIRIO, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 99-1852

United States Court of Appeals For the First Circuit

Heard March 9, 2000

Decided April 5, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Peter J. Zatz-Hanley, with whom Ramon M. Gonzalez was on brief, for petitioner.

Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Lyle D. Jentzer, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Selya, Circuit Judge.

Selya, Circuit Judge.

In this case, the petitioner, Luis Aquiles Herrera-Inirio, hoists the red flag of federalism and seeks to overturn an order calling for his deportation entered by the Board of Immigration Appeals (the Board). The Board's removal order rests upon its interpretation of 8 U.S.C. § 1101(a)(48)(A), the provision in the Immigration and Nationality Act (the I&N Act) that defines the term "conviction" for immigration-related purposes. The petitioner charges that the Board misread the law, failed to give full faith and credit to the Puerto Rico courts' construction of a Puerto Rico domestic violence statute, overstepped the bounds set by the Tenth Amendment, and transgressed the Due Process Clause of the Fifth Amendment. Finding that the petitioner's arguments lack force, we deny the petition for review.

I. BACKGROUND

The petitioner is a Dominican national who was admitted to the United States as an immigrant in 1994. He made his home in Puerto Rico, married an American citizen, and became a lawful permanent resident on April 16, 1997. Approximately two months later, his wife filed a complaint with the police, in which she claimed that the petitioner had used physical and psychological violence against her (e.g., striking her in the face with his fist, biting her breast, and forcing her into a car against her will). The police charged the petitioner with the criminal offense of aggravated abuse. See P.R. Laws Ann. tit. 8, § 632. On December 4, 1997, he pled guilty to a lesser charge of simple abuse. See id. § 631.

On January 30, 1998, the Puerto Rico Superior Court issued a resolution which commemorated that the petitioner had been "found guilty" on December 4 of a crime involving spousal abuse, but suspended further proceedings and ordered the petitioner to comply with a series of conditions for one year. See id. § 636 (stating in pertinent part that after an accused pleads guilty to certain specified crimes, "the court may... suspend all procedures and submit the convicted person to probation, provided he/she participates in a reeducation and retraining program for persons who incur abusive conduct in a relationship with another"). The resolution also stated:

If during this trial period the defendant does not violate any of the conditions, the Court will, at its sole discretion... be able to exonerate the defendant and dismiss the case against him.... The exonerated person will have the right to, once the case has been dismissed, have the Puerto Rico Police Superintendent return any records of fingerprints or photographies [sic] in their possession, taken in relation to the violation which gave origin to this accusation.

A federal statute, 8 U.S.C. § 1227(a)(2)(E)(i), provides that an alien who is convicted of a crime of domestic violence at any time after his entry into the United States is subject to deportation. A companion statute, 8 U.S.C. § 1227(a)(2)(A)(i), provides that an alien who, having acquired lawful permanent resident status, is convicted within ten years after admission to the United States of a crime of moral turpitude (for which a sentence of one year or longer may be imposed) is likewise subject to deportation. On July 24, 1998, the Immigration and Naturalization Service (the INS) invoked these statutes and instituted removal proceedings against the petitioner.

At his deportation hearing, the petitioner argued that he had merely been placed in a pretrial diversion program and thus had neither been "convicted" of the offense of spousal abuse nor "sentenced" to one year of probation. On January 15, 1999, the immigration judge (the IJ) ruled that the petitioner had been convicted of the crime for immigration purposes; that the crime was potentially punishable by a prison term of one year and involved moral turpitude; and that the petitioner had been sentenced to probation. Consequently, she ordered the petitioner removed from the United States.

The petitioner appealed this order to the Board. See 8 C.F.R. §§ 3.1(b)(3), 240.15 (1999). Shortly thereafter, the one-year probationary period expired. Accordingly, on February 12, 1999, the Superior Court dismissed the indictment in accordance with its earlier resolution and directed the police superintendent to purge the records. The petitioner then asked the Board to terminate the removal proceedings or, in the alternative, to remand the case to the IJ for action "according with the dismissal of the criminal charges." The Board demurred, instead dismissing the petitioner's appeal. In its decision, the Board held that the petitioner had been convicted for immigration purposes pursuant to 8 U.S.C. § 1101(a)(48)(A) because he had entered a guilty plea and a judge had decreed a form of punishment (the one-year probationary period). The Board also agreed with the IJ's determination that the petitioner had been convicted of a crime involving both spousal abuse and moral turpitude.

This timely petition for judicial review followed. In it, the petitioner challenges the finding that what transpired amounted to a "conviction" for immigration purposes (and, concomitantly, the constitutionality of section 1101(a)(48)(A)). He does not seek review of the Board's determination that the subject offense was a crime that involved both domestic violence and moral turpitude, and we therefore eschew any further reference to that aspect of the matter.

II. ANALYSIS

We bifurcate our analysis, first considering the propriety of the Board's construction of section 1101(a)(48)(A), and then addressing the petitioner's constitutional challenges.

A. Was Petitioner "Convicted"?

We review de novo an agency's construction of a statute that it administers, subject, however, to established principles of deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Strickland v. Commissioner, Me. Dep't of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. Because agency officials acting in the immigration context "exercise especially sensitive political functions that implicate questions of foreign relations," INS v. Abudu, 485 U.S. 94, 110 (1988), deference to administrative expertise is particularly appropriate.

The statute sub judice provides that:

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). This language leaves nothing to the imagination. The text 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.

The petitioner does not contest - nor could he - that he pled guilty or that the conditions imposed upon him during the one-year probationary period constituted a form of punishment, penalty, or restraint. Instead, he posits that his particular situation eludes the statute's sweep because the local court eventually issued a formal judgment of exoneration that wiped the slate clean.¹ This means, he says, that there was neither a "withheld adjudication of guilt" nor a "formal judgment of guilt" in his case.

This construct is unsound. Passing the fact that at the time of the IJ's determination the Puerto Rico Superior Court had not yet dismissed the indictment (and, thus, an adjudication of the petitioner's guilt was indeed "withheld"), no provision in the I&N Act gives controlling effect to state law or requires the INS to do an about-face if a state, pursuant to a diversionary disposition scheme, retroactively erases a conviction. To the exact contrary, state rehabilitative programs that have the effect of vacating a conviction other than on the merits or on a basis tied to the violation of a statutory or constitutional right in the underlying criminal case have no bearing in determining whether an alien is to be considered "convicted" under section 1101(a)(48)(A). See United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999); In re Roldan-Santoyo, Int. Dec. 3377, at 19 (BIA 1999); see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119 (1983); United States v. Cuevas, 75 F.3d 778, 782 (1st Cir. 1996).

If more were needed - and we do not think it is - the legislative history makes it crystal clear that the definition of "conv...