Martinez-Montoya v. I.N.S.
| Decision Date | 10 July 1990 |
| Docket Number | P,MARTINEZ-MONTOY,No. 89-4109,89-4109 |
| Citation | 904 F.2d 1018 |
| Parties | Rodrigoetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jeff Larsen, Texas Legal Services Center, Austin Tex., for petitioner.
Kenneth H. Stern, Stern & Elkind, Denver, Colo., for amicus American Immigration Lawyers Ass'n.
Richard Thornburgh, Atty. Gen., U.S. Dept. of Justice, Norah Ascoli Schwarz, Alice M. Smith, Richard M. Evans, David J. Kline, Robert L. Bombough, Civil Div., Washington, D.C., for respondent.
Ronald G. Parra, Deputy Director, Houston, Tex., John B.Z. Caplinger, Deputy Director, New Orleans, La., for other interested parties.
Petitioner for Review of an Order of the Immigration & Naturalization Service.
Before CLARK, Chief Judge, POLITZ and WILLIAMS, Circuit Judges.
Rodrigo Martinez-Montoya appeals from an order of deportation, which became final upon a denial of his application for legalization under Section 245A of the Immigration Reform and Control Act (IRCA), 8 U.S.C. Sec. 1255a. Appellant asserts that the Immigration and Naturalization Service (INS) erred in denying his application for legalization because the Legalization Appeals Unit (LAU) of the INS incorrectly concluded that he has been convicted of a crime within the meaning of section 245A(a)(4)(B) of the IRCA, 8 U.S.C. Sec. 1255a(a)(4)(B). 1 The alleged conviction was based upon his plea of guilty to a charge of forgery upon which the state court deferred adjudication under Texas Code Crim.Proc.Ann. art. 42.12, Sec. 3d (now Sec. 5)(Vernon Supp.1990). If he has been convicted, Martinez-Montoya is ineligible for legalization under section 245A.
We hold that the deferred adjudication of Martinez-Montoya's guilty plea, which procedure allows further proceedings on the issue of guilt before entering judgment and a continuing right of direct appeal, does not constitute a "conviction" for purposes of section 245A of the IRCA.
In February 1988, as part of a plea bargain, Martinez-Montoya pleaded guilty to a felony charge of forgery in Texas criminal court. Upon receiving the plea, rather than entering a formal finding or judgment of guilt, the court deferred adjudication in the case altogether, pursuant to article 42.12, Sec. 3d. 2 The state court then ordered Martinez-Montoya to serve three years of probation, and to pay a fine and court costs.
In June 1988, while Martinez-Montoya was serving his probation, the INS arrested him in a workplace raid at a construction site in Austin, Texas. The INS initiated deportation proceedings against Martinez-Montoya, alleging that he had entered the United States without inspection. At the time of his arrest, Martinez-Montoya had filed a legalization application with a local voluntary agency, which later timely filed it with the Legalization Office of the INS. His application was pending during the deportation proceedings.
At the deportation hearing, Martinez-Montoya conceded deportability for his entry without inspection and was ordered deported. Pursuant to the automatic stay provision in the legalization statute, 8 U.S.C. Sec. 1255a(e)(2)(A), the deportation order was stayed until his application for legalization was granted or denied.
In August 1988, Martinez-Montoya's application for legalization was administratively denied, based upon the INS District Director's determination that he was ineligible for legalization under section 245A of the Immigration Reform and Control Act (IRCA). The section provides in relevant part:
(a) Temporary resident status
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the alien meets the following requirements:
* * * * * *
Section 245A, 8 U.S.C. Sec. 1255a. The immigration officer concluded that Martinez-Montoya had been convicted of a felony within the meaning of section 245A 3 and thus was ineligible for legal status. Martinez-Montoya appealed to the Legalization Appeals Unit (LAU) of the INS.
On appeal, the LAU upheld the denial of his application for legal status and dismissed the appeal based upon its independent determination that Martinez-Montoya was convicted of forgery when he pleaded guilty and was subjected to punishment by a state court. In its opinion, the LAU formulated an unprecedented two-prong test for determining whether an alien has been convicted within the meaning of Sec. 245A [A] conviction will be found for purpose [sic] of 245A(a)(4)(B) of the Act where these two elements are found:
(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere; and
(2) the judge has ordered some form of punishment or penalty, including but not limited to a fine or probation.
Under this test, because Martinez-Montoya pleaded guilty to the state charge of forgery and consequently was fined and placed on probation, the LAU held that Martinez-Montoya has been convicted of forgery within the meaning of Sec. 245A. Appellant appeals from the LAU decision. The American Immigration Lawyers Association (AILA) participates in the appeal as amicus curiae.
We are asked to determine whether the LAU erred in holding that appellant Martinez-Montoya has been "convicted" within the meaning of section 245A of the IRCA, 8 U.S.C. Sec. 1255a.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984), the Supreme Court said:
The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. [Citations omitted.] If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.
The federal agency construction is to be upheld if it is reasonable and if it is not contrary to Congressional intent. Martin v. Kilgore First Bancorp., Inc., 747 F.2d 1024 (5th Cir.1984).
In order to consider the legal issues in their proper context, we find it appropriate to lay out briefly the relevant background and history of the LAU decision. The LAU derived its sweeping definition of conviction in part from the recent Board of Immigration Appeals (BIA) decision in Matter of Ozkok, Int. Dec. 3044 (BIA April 26, 1988). In Ozkok, after an extensive review of the relevant case law, legislative history, and INS precedent, the BIA deviated abruptly from long-standing INS and BIA precedent. It produced a new test for determining whether an alien has been convicted for immigration purposes.
Earlier, a conviction for immigration purposes was found to exist only when the following elements were satisfied:
(1) there has been a judicial finding of guilt;
(2) the court takes action which removes the case from the category of those which are (actually, or in theory) pending for consideration by the court--the court orders the defendant fined, or incarcerated or the court suspends sentence, or the court suspends the imposition of sentence; [and]
(3) the action of the court is considered a conviction by the state for at least some purpose.
Matter of Ozkok, supra; Matter of L-R-, 8 I & N Dec. 269 (BIA 1959). Additionally, and as a separate requirement, the conviction must be sufficiently final to consider the alien convicted for immigration purposes. This test "has been the standard we have applied since then [1959] to determine whether a conviction exists for immigration purposes." Matter of Ozkok, supra. Until the BIA decision in Ozkok, the INS consistently applied this same test to a myriad of immigration matters for over thirty years. See, e.g., Matter of Garcia, Int. Dec. 2995 (BIA 1985); Matter of Zangwill, 18 I & N Dec. 22 (BIA 1981); Matter of Seda, 17 I & N Dec. 550 (BIA 1980); Matter of Robinson, 16 I & N Dec. 762 (BIA 1979); Matter of Varagianis, 16 I & N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I & N Dec. 401 (BIA 1963).
In Ozkok, however, the BIA rejected this well-established test as too narrow and undesirably subject to the vagaries of state law. Instead it modified the standard for determining whether a conviction exists for purposes of immigration law. Under the new Ozkok standard, if a formal adjudication or judgment of guilt has been entered, then a conviction is deemed to exist. If, however, no formal judgment of guilt has been entered by the court, a conviction nonetheless will be found if the following elements are satisfied:
(1) A judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver's license, deprivation of non-essential activities or privileges, or community service); and
(3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge.
The BIA thus entirely changed the third prong of the traditional test which followed the import of state law. It substituted its own third requirement that no further proceedings as to guilt or innocence are available to the alien in the event he or she violates his or her probation. Although the Ozkok...
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