In re Eslamizar
| Decision Date | 19 October 2004 |
| Docket Number | Interim Decision Number 3502,File A26 095 657. |
| Citation | 23 I&N Dec. 684 |
| Parties | In re Hadi ESLAMIZAR, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 8, 2003, we sustained an appeal by the Department of Homeland Security ("DHS"),1 concluding that the respondent was subject to removal from the United States as an alien who, at any time after admission, has been convicted of two or more crimes involving moral turpitude not arising from a single scheme of criminal misconduct. See section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000). On October 31, 2003, the respondent filed the present motion to reconsider, contending that our decision was incorrect as a matter of both fact and law. In part because we agree with the respondent that the decision contains a material factual error, the motion to reconsider will be granted. Upon full reconsideration, moreover, we conclude that our prior decision was legally incorrect. Accordingly, our decision will be vacated and the appeal will be dismissed.2
The respondent is a native and citizen of Iran who was first admitted to the United States in 1986 as a nonimmigrant and whose status was subsequently adjusted to that of a lawful permanent resident. On July 25, 1996, the respondent was convicted in the Circuit Court of Multnomah County, Oregon, of the offense of theft in the third degree in violation of section 164.043 of the Oregon Revised Statutes, for which he was sentenced to 2 years' probation. The offense of third-degree theft was classified as a Class C misdemeanor, punishable by a maximum term of imprisonment of 30 days and a maximum fine of $1,000. Or. Rev. Stat. §§ 161.615(3), 161.635(1)(c) (1996).
In July 1999 the respondent was charged for a second time with the offense of third-degree theft. Although the offense qualified as a misdemeanor and was initially charged as such, Oregon law allowed the prosecuting attorney to amend the accusatory pleading so as to "treat" the offense as a "Class A violation" rather than as a misdemeanor.3 Or. Rev. Stat. § 161.566 (1999). Such a prosecutorial election was made in the respondent's case. Thus his trial was conducted in accordance with section 153.076 of the Oregon Revised Statutes, which provides for proceedings that differ from conventional criminal prosecutions in that, among other things, the State need only prove guilt "by a preponderance of the evidence," rather than "beyond a reasonable doubt." On September 13, 1999, at the conclusion of the respondent's trial, the court found him "guilty" of the offense of third-degree theft under section 164.043 of the Oregon Revised Statutes and sentenced him to pay a nominal fine, as well as various special financial assessments.
The present removal proceedings were initiated, charging that the respondent is an alien convicted at any time after admission of two or more crimes involving moral turpitude not arising from a single scheme of criminal misconduct. See section 237(a)(2)(A)(ii) of the Act. On the respondent's motion, the Immigration Judge dismissed the charge and terminated the removal proceedings in a decision dated February 7, 2002. In doing so, the Immigration Judge concluded that the September 13, 1999, Oregon judgment issued against the respondent did not qualify as a "conviction" for a "crime" that could give rise to immigration consequences, because the proceedings in which that judgment was entered did not afford the respondent many of the constitutional safeguards generally required for criminal prosecutions.
The DHS filed a timely appeal from the Immigration Judge's decision, arguing that the respondent's 1999 violation adjudication qualified as a valid criminal conviction for immigration purposes. We sustained the appeal, holding that the Oregon judgment constituted a "conviction" under the plain language of section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000). We also concluded that the respondent's theft offenses, as defined by Oregon law, were crimes involving moral turpitude that provided a proper basis for a charge of removability. Accordingly, we reinstated the removal proceedings and remanded the record to the Immigration Judge for entry of an order of removal and for further proceedings to determine whether the respondent should be granted some form of relief.
In his present motion to reconsider, the respondent contends that our decision was erroneous as a matter of both fact and law. In our prior decision, we cited as valid authority the Oregon Supreme Court's decision in State v. Thomas, 806 P.2d 689 (Or. 1991), which held that proof beyond a reasonable doubt was required for conviction of third-degree theft, even if the offense was tried as a violation rather than as a misdemeanor. See also State v. Rode, 848 P.2d 1232 (Or. Ct. App. 1993). The respondent's motion persuades us that State v. Thomas, supra, was cited in error. Specifically, the holding of that decision appears to have been superseded by statute, and there has been no further decision from the Oregon Supreme Court invalidating or otherwise addressing the constitutionality of the subsequent statute. Because of this crucial factual error regarding the requirements of Oregon law, as applicable to the respondent's case, we reconsider our prior decision in full, and as previously indicated, we arrive at a different legal conclusion.
The issue in this case is whether a judgment of guilt entered against the respondent in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes constitutes a "conviction" for immigration purposes.
For purposes of the Immigration and Nationality Act, Congress has defined the term "conviction" to mean, in pertinent part, "a formal judgment of guilt of the alien entered by a court." Section 101(a)(48)(A) of the Act. On September 13, 1999, the Circuit Court of Multnomah County, Oregon, issued a formal judgment finding the respondent "guilty" of the offense of third-degree theft. Although a literal reading of the conviction definition persuaded us earlier that the respondent's offense was a "conviction" for immigration purposes, on reconsideration we do not find the definition to be clear or to dictate such an outcome.
The purported clarity of the statutory language depends on an assumption that by the phrase "judgment of guilt," Congress meant only that the adjudicative finding of a court must carry the label "guilt" or "guilty." We observe initially that the consequences of such a reading render it an unlikely construction. This is so because it would mean that if a State has so denominated, or in the future should so denominate, a civil judgment, e.g., one for an intentional tort or for conduct that results in a judgment to pay a civil fine or punitive damages, such a judgment would evidently qualify as a "conviction" for immigration purposes.
Some civil sanctions may be punitive, even to the point of precluding a subsequent criminal prosecution under the Double Jeopardy Clause, though rarely. See Hudson v. United States, 522 U.S. 93 (1997). However, in the absence of any persuasive evidence to the contrary, we doubt that Congress had so expansive a reach in mind. Moreover, a far more sensible reading of the statute exists: namely, that by "judgment of guilt" Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication. Such a meaning, which we adopt, is consistent with the ordinary connotation of the term "guilt," especially in the context of a definition of the term "conviction."
We recognize that Oregon law uses the label "criminal" to describe the hybrid "violation" adjudication proceedings. See Or. Rev. Stat. §§ 131.005(6), (7) (2003). Such trials are also subject to the criminal procedure laws of Oregon. Or. Rev. Stat. § 153.030(1) (2003). An offender has the right to confront his accusers and have the evidence of witnesses provided orally in open court. Or. Rev. Stat. § 153.080(2) (2003). A defendant also has the right to appeal the judgment of the court. Or. Rev. Stat. § 153.121 (2003).
However, Oregon's offense classification system defines "crimes" and "violations" in mutually exclusive terms, stating that "[a]n offense is either a crime ... or a violation." Or. Rev. Stat. § 161.505 (2003). Oregon law further provides that "[c]onviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." Or. Rev. Stat. § 153.008(2) (2003). Moreover, pursuant to section 153.076 of the Oregon Revised Statutes, violation proceedings are tried to the court sitting without a jury, the defendant need not be provided counsel at public expense, and the State need only prove the defendant's violation by a preponderance of the evidence. Significantly, the Oregon Court of Appeals in State v. Rode, supra, at 1235, concluded that the conduct of a defendant whose misdemeanor offense was prosecuted as a violation "was not a crime, and the prosecution of the conduct was not a criminal prosecution."
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