In re Punu
| Decision Date | 18 August 1998 |
| Docket Number | File A72 423 857.,Interim Decision No. 3364. |
| Parties | In re Mark Gerald PUNU, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, GUENDELS-BERGER, and JONES, Board Members. Concurring Opinion: GRANT, Board Member, joined by FILPPU, Board Member. Concurring and Dissenting Opinion: ROSENBERG, Board Member.
VILLAGELIU, Board Member.
The respondent appeals from the April 17, 1997, decision of the Immigration Judge finding him deportable as charged, as an aggravated felon convicted of attempted murder, and ineligible for relief from deportation. The appeal will be dismissed.
The respondent is a native and citizen of the Philippines who was admitted into the United States on or about September 9, 1992, as a nonimmigrant, later adjusting his status to that of a lawful permanent resident of the United States on January 6, 1993. The record reflects that on August 26, 1993, the respondent entered a plea of nolo contendere in the 179th District Court of Harris County, Texas, to a charge of attempted murder. On that same date the trial judge deferred adjudication of the criminal charge and placed the respondent on probation until August 25, 2001. See Tex. Crim. P. Code Ann. art. 42.12, § 5(a) (West 1993).
On January 10, 1997, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221), charging the respondent with deportability under section 241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), alleging that he had been convicted of an aggravated felony as defined under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994). In finding the respondent deportable, the Immigration Judge held that his deferred adjudication constituted a conviction for an aggravated felony under the new definition of the term "conviction," which was enacted by section 322 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 ("IIRIRA"), and codified in section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996).1
On appeal the respondent offers several constitutional challenges to the application of the newly enacted definition of the term "conviction" to his August 16, 1993, deferred adjudication, claiming violations of the Fifth Amendment's due process, full faith and credit, and ex post facto clauses. Similarly, the respondent offers a number of arguments why his deferred adjudication cannot constitute a "conviction" for immigration purposes, including the following: all direct appeals of his adjudication have not been exhausted; the statute does not specifically reference deferred adjudications; the Texas deferred adjudication statute provides for dismissal of charges upon completion of probation; and the new definition of conviction is inapplicable, as his deferred adjudication was entered prior to its enactment. The respondent also maintains that Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990), is controlling precedent in the circuit in which this case arises, and that it mandates an outcome contrary to that arrived at by the Immigration Judge in this case.
In response, the Service contends that Congress deliberately broadened the scope of the definition of a "conviction," as enunciated by this Board in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), in order to obviate the effects of the various state ameliorative provisions which may follow a finding or admission of guilt and imposition of punishment.2 The Service asserts that Congress has abolished the requirement that an adjudication be "final" and eliminated the third prong of the Matter of Ozkok definition of a conviction.
Initially, we reject the respondent's contention that the decision of the United States Court of Appeals for the Fifth Circuit in Martinez-Montoya v. INS, supra, is controlling, although this Board has historically followed a circuit court's precedent in cases arising within that circuit. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989), Where Congress has subsequently spoken to the precise question at issue and its intent is clear, effect must be given to congressional intent and "that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), Basic principles of statutory construction mandate that courts first "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. In determining a statute's plain meaning, we assume that "Congress intends the words in its enactments to carry `their ordinary, contemporary, common meaning.'" Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388 (1993) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); see also INS v. Phinpathya, 464 U.S. 183, 189 (1984), In ascertaining the plain meaning of the statute, the Board "must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), Where Congress' intent is not plainly expressed or subject to an ordinary meaning, we are to determine a reasonable interpretation of the language that effectuates Congress' intent. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra.
Similarly, the rules of statutory construction dictate that we take into account the design of the statute as a whole. K Mart Corp. v. Cartier, Inc., supra. In doing so, we may examine the legislative history. Although legislative statements have less force than the clear and plain language of the statute, such statements are helpful to corroborate and underscore a reasonable interpretation of the statute. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 32 (1982).
We agree with the Service that Congress has clearly and unambiguously defined the term "conviction" for immigration purposes and thus has spoken directly to the issue before the Board. Congress has expressly stated that its intent in enacting section 322 of the IIRIRA was to "broaden[] the scope of the definition of `conviction' beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok." H.R. Conf. Rep. No. 104-828, at 224 (1996) ("Joint Explanatory Statement"), In this regard, the conference report states:
As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered "convicted" have escaped the immigration consequences normally attendant upon a conviction. Ozkok, while making it more difficult for alien criminals to escape such consequences, does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien's future good behavior. . . . In some States, adjudication may be "deferred" upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien's guilt or innocence. In such cases the third prong of the Ozkok definition prevents the original finding or confession of guilt to be considered a "conviction" for deportation purposes. This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is "deferred," the original finding or confession of guilt is sufficient to establish a "conviction" for purposes of the immigration laws.
Similarly, the purpose of the newly enacted section 101(a)(48)(A) was summarized as follows: H.R. Rep. No. 104-879 (1997), available in 1997 WL 9288 at *295. Thus, it is clear that Congress deliberately modified the definition of conviction to include deferred adjudications.
The Texas statute under which the respondent received an order of deferred adjudication provides [W]hen in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation.
Tex. Crim. P. Code art. 42.12, § 5(a).
The record reflects that the respondent received a deferred adjudication for attempted murder on August 26, 1993. The respondent concedes that, in conjunction with his deferred adjudication, he was placed on probation for 8 years. The respondent's suggestion that probation is not a form of punishment or a restraint upon his liberty is incorrect. The Texas Court of Criminal Appeals has specifically held that an order of deferred adjudication itself can be regarded as a form of punishment. Watson v. State, 924 S.W.2d...
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