Luna-Reyes v. Attorney Gen.

• Decision Date: 03 September 2020
• Docket Number: No. 18-1823,18-1823
• Parties: ROBERTO LUNA-REYES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
• Court: U.S. Court of Appeals — Third Circuit

ROBERTO LUNA-REYES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 18-1823

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: January 14, 2019

September 3, 2020

NOT PRECEDENTIAL

ON PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS

(A87-942-339)

Immigration Judge: Alberto J. Riefkohl

Submitted Under Third Circuit L.A.R. 34.1(a)

January 14, 2019

Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges.

OPINION^*

SHWARTZ, Circuit Judge.

Roberto Luna-Reyes petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal of the Immigration Judge's ("IJ") order denying his application for cancellation of removal. Because the BIA correctly concluded that Luna-Reyes's third drunk-driving offense constituted a "conviction" under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(48)(A), the BIA properly held that he was ineligible for relief. We will therefore deny the petition for review.

I

Luna-Reyes, a native and citizen of Mexico, arrived in the United States in 1992 without inspection. In 2010, Luna-Reyes was convicted of having "a third or subsequent violation" of New Jersey's Driving While Intoxicated ("DWI") statute, N.J. Stat. Ann. § 39:4-50(a)(3), and a municipal court sentenced him to 180 days in jail, imposed a $1,000 fine, ordered that he install an ignition interlock device in his car, and suspended his license for ten years, N.J. Stat. Ann. § 39:4-50(a)(3) (providing these penalties "[f]or a third or subsequent violation" of the DWI statute).

The Department of Homeland Security ("DHS") thereafter issued to Luna-Reyes a notice to appear before an IJ and charged him with removability as an "alien present in the United States who has not been admitted or paroled." AR 653. The initial notice to appear did not specify a date or time for his removal hearing, but DHS later issued Luna-Reyes a notice of hearing that included this information.

Luna-Reyes appeared before an IJ for a hearing and sought cancellation of removal. The IJ reasoned that, for Luna-Reyes to obtain cancellation of removal, he had to establish, among other things, that he was a "person of good moral character" during his period of physical presence in the United States. AR 116 (citing 8 U.S.C. § 1229b(b)(1)(B)). Because the INA provides that a person does not have "good moral character" if he was "confined" "to a penal institution for an aggregate period of one hundred and eighty days or more," and Luna-Reyes received a 180-day jail sentence for his DWI conviction, the IJ held that he was not entitled to relief. AR 117 (emphasis omitted). To the IJ, it was irrelevant for immigration purposes that New Jersey "classifies DWI as a 'violation' rather than a 'crime' and precludes the offense from giving rise to any criminal disabilities" within the state. AR 117.

Luna-Reyes appealed the IJ's decision to the BIA. The BIA reasoned that because Luna-Reyes's "180 days of confinement to a penal institution" and repeated drunk-driving offenses did not reflect a good moral character, he lacked a prerequisite for obtaining cancellation of removal. AR 7. Moreover, the BIA agreed with the IJ that Luna-Reyes's drunk-driving "conviction" occurred in a "genuine criminal proceeding," AR 4 (citation omitted), included "the constitutional safeguards normally attendant upon a criminal adjudication,'" AR 4 (quoting In re Eslamizar, 23 I. & N. Dec. 684, 687 (B.I.A. 2004) (en banc)); see also AR 5-6 (discussing the burden of proof, right to discovery, privilege against self-incrimination and shield of double jeopardy, right to appeal), and led to a punitive sanction. Like the IJ, the BIA did not find dispositive thestate-law classification for the offense or that he was not entitled to a jury trial or prosecution by indictment. For these reasons, the BIA dismissed Luna-Reyes's appeal. Luna-Reyes petitions for review.

II¹

A

To qualify for cancellation of removal, Luna-Reyes must show, among other things, that he "has been a person of good moral character" during "a continuous period of not less than 10 years immediately preceding the date" of his cancellation application. 8 U.S.C. § 1229b(b)(1)(A), (B); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 177 (3d Cir. 2003). The INA provides:

No person shall be regarded as . . . a person of good moral character who . . . was . . . confined, as a result of conviction, to a penal institution for anaggregate period of one hundred and eighty days or more, regardless of whether the offense . . . for which he has been confined w[as] committed within or without such period[.]

8 U.S.C. § 1101(f)(7). The parties agree that Luna-Reyes was confined to a penal institution for 180 days but dispute whether his guilty plea for violating N.J. Stat. Ann. § 39:4-50 resulted in a "conviction" barring him from being a "person of good moral character." 8 U.S.C. § 1101(f).

Under the INA, a "conviction" is "a formal judgment of guilt of the alien entered by a court." § 1101(a)(48)(A). To determine whether a prior adjudication of guilt is a "conviction" under the INA, we use "an 'open-ended inquiry' as to whether the judgment of guilt was 'entered in a . . . genuine criminal proceeding.'" Gourzong v. Att'y Gen., 826 F.3d 132, 139 (3d Cir. 2016) (omission in original) (quoting Castillo, 729 F.3d at 307). Several factors guide this inquiry. Proof beyond a reasonable doubt is "a necessary but not sufficient condition for a proceeding to qualify as a 'genuine criminal proceeding.'" Id. at 139 n.4 (quoting Castillo, 729 F.3d at 307). We also consider: (1) "how the prosecuting jurisdiction characterized the offense at issue"; (2) "the consequences of a finding of guilt"; (3) "the rights available to the accused"; and (4) "any other characteristics of the proceeding itself." Id. at 139 (quoting Castillo, 729 F.3d at 307).

As a threshold matter, to secure a DWI conviction, the prosecution must prove the defendant's guilt beyond a reasonable doubt. State v. Robertson, 155 A.3d 571, 576 (N.J. 2017). Thus, a necessary condition for the proceeding to qualify as a "genuine criminalproceedings" is satisfied. All but one of the remaining factors affirmatively demonstrate that a conviction for violating N.J. Stat. Ann. § 39:4-50 constitutes a conviction under the INA.

First, while New Jersey law characterizes DWIs under N.J. Stat. Ann. § 39:4-50 as "quasi-criminal matters,"² id. at 577; State v. Denelsbeck, 137 A.3d 462, 472 (N.J. 2016) (noting that a "DWI is 'not a crime under New Jersey law'" (quoting State v. Hamm, 577 A.2d 1259, 1261 (N.J. 1990)), this classification does not control whether a DWI is a "conviction" under the INA, cf. Acosta v. Ashcroft, 341 F.3d 218, 223 (3d Cir. 2003) (noting that a state "[l]egislature obviously cannot dictate how the term 'conviction' is to be construed under federal law").³ Thus, this first factor is neutral.

Second, the consequences and penalties that flow from a third DWI conviction are more punitive than rehabilitative. See Gourzong, 826 F.3d at 139 n.5 (describing penalties associated with offense at issue as "prototypical of those imposed by criminal courts"). A "third or subsequent violator" of the DWI statute such as Luna-Reyes must"be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program." Denelsbeck, 137 A.3d at 470 (emphasis omitted) (quoting N.J. Stat. Ann. § 39:4-50(a)(3)). A "third or subsequent violation" of the DWI statute also requires a $1,000 fine, a ten-year license suspension, mandatory installation of an interlock device, N.J. Stat. Ann. § 39:4-50(a)(3), and a $50 assessment, N.J. Stat. Ann. § 2C:43-3.1(c).⁴ While the interlock device is a "preventative" measure, the 180-day jail sentence, $1,000 fine, and $50 assessment are deemed "criminal penalties." Denelsbeck, 137 A.3d at 474. Furthermore, while a DWI conviction is not included in criminal databases, it cannot be expunged, see State v. K.M., 532 A.2d 254, 255 (N.J. Super. Ct. App. Div. 1987), and itmay be "consider[ed] . . . as part of [a] defendant's overall personal history as well as pertinent to the risk that [the] defendant would commit another offense and the need for deterrence" for sentencing in later proceedings, State v. Lawless, 32 A.3d 562, 570 (N.J. Super. Ct. App. Div. 2011) (internal quotation marks and citation omitted).⁵

Third, DWI defendants have several procedural rights that are hallmarks of "genuine criminal proceeding[s]." Gourzong, 826 F.3d at 139. Specifically,

• a DWI defendant has appellate rights under N.J. Stat. Ann. § 39:4-50 from the municipal court, is "entitled to a trial de novo" in the Law Division, Robertson, 155 A.3d at 576, may seek further appellate review before the New Jersey Superior Court, Appellate Division, and may seek certification from New Jersey Supreme Court, id.; State v. Stas, 29 A.3d 741 (N.J. 2011) (mem.) (granting DWI defendant's petition for certification);

• the New Jersey Rules of Evidence apply in DWI trials, State v. Gibson, 98 A.3d 519, 527 (N.J. 2014);

• a DWI defendant has a right against self-incrimination, id.;

• a DWI defendant has a right to confrontation, id.; State v. Kent, 918 A.2d 626, 635, 638-40 (N.J. Super. Ct. App. Div. 2007);

• double jeopardy protection attaches to DWI proceedings,⁶seeState v. Widmaier, 724 A.2d 241, 249-51 (N.J. 1999); and• a DWI defendant is entitled to discovery from the state, State v. Utsch, 446 A.2d 1236, 1238 (N.J. Super. Ct. App. Div. 1982).

This panoply of rights, typically present in criminal cases, shows that New Jersey's DWI prosecutions are "genuine criminal proceedings" under the INA.⁷

Luna-Reyes contends that the absence of a jury trial in a DWI case shows that it is not a genuine criminal proceeding. We disagree. The lack of a jury trial does not make a...