Jaquez v. Sessions
| Decision Date | 08 June 2017 |
| Docket Number | No. 16-1147,16-1147 |
| Citation | 859 F.3d 258 |
| Parties | Eleuterio Payan JAQUEZ, a/k/a Eleuterio Payan, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, for Petitioner.
Gregory Michael Kelch, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Petition for review denied by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Harris joined.
Eleuterio Payan Jaquez, a citizen and native of Mexico, petitions for review of a Board of Immigration Appeals ("BIA") order affirming an Immigration Judge's ("IJ") decision finding him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C). Payan Jaquez contends that the BIA erred in determining that his 2005 criminal proceedings under Virginia Code § 18.2-251 for possession of cocaine constituted a "conviction" as defined in 8 U.S.C. § 1101(a)(48)(A). Because Payan Jaquez's 2005 proceedings fall squarely within the plain text of § 1101(a)(48)(A), we deny the petition for review.
On June 6, 1989, Payan Jaquez was lawfully admitted to the United States as a conditional permanent resident based on his marriage to a United States citizen, Carol Trevino. Conditional permanent residents must petition to remove the conditions on their residency within ninety days of the second anniversary of their lawful admission, but Payan Jaquez failed to do so and his legal status terminated in 1991. 8 U.S.C. § 1186a. He filed a petition in 2006, but it was denied.
Payan Jaquez separated from Ms. Trevino in 1989 and their divorce was finalized in 2004. He married another United States citizen, Sheila Johns, in 2005. They had two children together, born in 1993 and 1997, one of whom suffers from autism, ADHD, mental retardation, seizure disorder, and cerebral palsy. Payan Jaquez had a third United States citizen child with Elsa Monty Retina in 2009.
Payan Jaquez was charged with possession of cocaine in December 2004, in violation of Virginia Code § 18.2-250. On May 23, 2005, he pled guilty in Charlottesville Circuit Court to the possession charge. The judge found that Payan Jaquez made the plea freely, voluntarily, and intelligently. He accepted Payan Jaquez's guilty plea and continued the case for sentencing.
On November 3, 2005, the judge sentenced Payan Jaquez pursuant to Virginia Code § 18.2-251, which applies to first-time offenders. The judge vacated the finding of guilt and deferred adjudication, placing Payan Jaquez on probation for twelve months under conditions including good behavior, full-time employment, and abstention from alcohol and drugs. On December 18, 2007, upon Payan Jaquez's successful completion of the probationary period, the judge dismissed the cocaine charge pursuant to § 18.2-251.
The Department of Homeland Security ("DHS") issued a Notice to Appear to Payan Jaquez on June 6, 2008. The notice alleged that Payan Jaquez was removable because he failed to request removal of the conditional basis for his permanent residence by December 17, 1991 and due to his 2005 cocaine conviction. At a hearing before the IJ, Payan Jaquez admitted both grounds for removal.
In 2009, Payan Jaquez filed an application for cancellation of removal. In support of his application, he cited his continuous physical presence in the United States for more than ten years. He also indicated that his removal would result in extreme hardship for his United States citizen child who suffers from numerous medical conditions.
In 2014, DHS filed a motion to pretermit Payan Jaquez's cancellation of removal application. DHS argued that his cocaine conviction precluded him from relief because applicants are ineligible for cancellation if they have been convicted of certain offenses. Payan Jaquez opposed the motion on the grounds that he had not been "convicted," as the term is defined in § 1101(a)(48)(A), because he did not meet the requisite elements: a sufficient finding of guilt and imposition of some form of punishment.
The IJ issued a written opinion, finding that Payan Jaquez's conviction rendered him ineligible for cancellation of removal under § 1229b(b)(1)(C). The IJ concluded that Payan Jaquez's 2005 criminal proceedings qualified as a conviction in which adjudication was deferred because Payan Jaquez pled guilty and was placed on probation. The IJ found Payan Jaquez removable under 8 U.S.C. § 1227 and ineligible for cancellation of removal, but granted him the ability to voluntarily depart within sixty days.
Payan Jaquez appealed the decision to the BIA, and the BIA issued an opinion dismissing the appeal. The BIA agreed with the IJ that the conviction was valid for immigration purposes. Payan Jaquez pled guilty and the judge vacated the finding of guilt "pursuant to the state rehabilitative statute." J.A. 15. The BIA also found that "probation is a form of punishment, penalty, or restraint on an alien's liberty," as required by § 1101(a)(48)(A). Id. (citing Matter of Punu , 22 I. & N. Dec. 224, 228 (BIA 1998) ). Thus, the BIA affirmed the IJ's decision, but remanded because the IJ failed to provide Payan Jaquez with certain advisals regarding voluntary departure as 8 C.F.R. § 1240.26(c)(3) commands. On remand, the IJ was to provide those advisals and enter a new voluntary departure order.
Payan Jaquez timely petitioned for review of the BIA's order to this Court.
We generally lack jurisdiction to review orders of removal when an alien is removable for a controlled substance conviction, 8 U.S.C. § 1252(a)(2)(C), but because this case involves a question of law, we retain jurisdiction to review the BIA's order.1 8 U.S.C. § 1252(a)(2)(D). The "purely legal question" presented is whether Payan Jaquez's deferred adjudication under Virginia Code § 18.2-251 qualifies as a conviction for immigration purposes under § 1101(a)(48)(A). Crespo v. Holder , 631 F.3d 130, 133 (4th Cir. 2011).
This Court reviews this question of law de novo, Castillo v. Holder , 776 F.3d 262, 267 (4th Cir. 2015), subject to Chevron deference. Crespo , 631 F.3d at 133 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). Thus, the statutory language controls if Congress has spoken clearly on the question, but if the statute is silent or ambiguous, this Court will defer to the BIA's reasonable interpretation. Crespo , 631 F.3d at 133 (citing Ramirez v. Holder , 609 F.3d 331, 334 (4th Cir. 2010) ).
The Attorney General may cancel removal and grant permanent resident status to an alien if he or she (i) has been present in the United States continuously for ten years; (ii) has been a person of good moral character; (iii) has not been convicted of offenses under certain statutes, including 8 U.S.C. § 1227(a)(2) ; and (iv) shows that removal would result in exceptional hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).
This case concerns the third requirement for cancellation of removal eligibility. An alien is removable, and ineligible for cancellation, if he or she has been convicted of violating a state or federal law or regulation relating to a controlled substance.2 8 U.S.C. § 1227(a)(2)(B)(i). The term "conviction" as used in this provision is defined as:
8 U.S.C. § 1101(a)(48)(A). Thus, there are two possible ways to find a conviction: where there has been a formal judgment of guilt, and where adjudication has been deferred. Crespo , 631 F.3d at 134.
Payan Jaquez's case involves the second avenue, a deferred adjudication under Virginia law. A conviction in a deferred adjudication situation requires two elements: "(i) [a] sufficient finding of support for a conclusion of guilt, and (ii) the imposition of some form of punishment." Crespo , 631 F.3d at 134 (alteration in the original) (quoting Griffiths v. I.N.S. , 243 F.3d 45, 53 (1st Cir. 2001) ). The first element can be found in five different circumstances: "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." Crespo , 631 F.3d at 134 (citing 8 U.S.C. § 1101(a)(48)(A)(i) ).
Payan Jaquez's 2005 criminal proceedings fall squarely within the definition of a deferred adjudication conviction under § 1101(a)(48)(A)(i). The proceedings meet the first element, a sufficient finding of guilt, because Payan Jaquez "entered a plea of guilty" to possession of cocaine in Charlottesville Circuit Court. 8 U.S.C. § 1101(a)(48)(A)(i). A guilty plea is one of the five possible ways to satisfy the first element. Crespo , 631 F.3d at 134. In this case, Payan Jaquez pled guilty, and the judge accepted his plea, finding it "freely, voluntarily, and intelligently made." J.A. 164. Thus, according to the plain language of the statute, Payan Jaquez's adjudication satisfies the first prong of the conviction test for a deferred adjudication.
Payan Jaquez's proceedings also satisfy the second prong of the test, which requires "some form of punishment, penalty, or restraint on the alien's liberty." 8 U.S.C. § 1101(a)(48)(A)(ii). Probation is "most certainly a...
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