Matter of Cabrera
| Decision Date | 27 February 2008 |
| Docket Number | Interim Decision No. 3601.,File A76 171 415. |
| Citation | 24 I&N Dec. 459 |
| Parties | Matter of Arturo CABRERA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 22, 2007, an Immigration Judge terminated the removal proceedings against the respondent after determining that the Department of Homeland Security ("DHS") failed to meet its burden of proving by clear and convincing evidence that the respondent is removable because of a conviction for violating a law relating to a controlled substance.1 The DHS has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of Cuba. The record reflects that in February 2007, he entered a plea of nolo contendere to a charge of possession of a controlled substance in violation of the Florida Statutes and that adjudication of his guilt was withheld. Under Florida law, criminal defendants who plead guilty or nolo contendere, including those whose adjudication is withheld, can be assessed additional costs and surcharges. The record in this case reflects that the respondent was assessed a total of $458 in costs and surcharges, several of which were mandatory under the Florida Statutes.
The Immigration Judge concluded that the imposition of court costs and surcharges against the respondent in connection with his plea did not qualify as a "penalty" or "punishment" within the meaning of section101(a)(48)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A)(ii) (2000). As a result, the Immigration Judge determined that the respondent does not have a "conviction" and is therefore not removable. The DHS challenges these findings on appeal. In addition, the DHS argues that pursuant to Florida criminal procedure, an adjudication of guilt can be withheld only if the defendant is placed on probation. Thus, the DHS asserts that the respondent was subjected to some form of restraint on his liberty for purposes of establishing a conviction under section 101(a)(48)(A)(ii) of the Act.
The issue in this case is whether the imposition of costs and surcharges following a plea in a criminal proceeding constitutes a "penalty" or "punishment" such that an alien has suffered a "conviction" within the meaning of section 101(a)(48)(A) of the Act.
Whether an alien has been convicted for purposes of section 101(a)(48)(A) of the Act is a question of law, or a mixed question of law and fact, as to which the Board exercises de novo review. See 8 C.F.R. § 1003.1(d)(3)(ii) (2007). In regard to the legal question before us, we conclude that a uniform Federal definition should govern in determining whether the assessment of costs and surcharges constitutes a "penalty" or "punishment," irrespective of how the State might characterize them. See Matter of Eslamizar, 23 I&N Dec. 684, 687 (BIA 2004) (). In this case, the State of Florida considers the costs and surcharges imposed on the respondent as "punishment," a characterization with which we concur.
In State v. Champe, 373 So. 2d 874, 880 (Fla. 1978), the Supreme Court of Florida upheld the constitutionality of additional costs and a surcharge under the Florida Statutes, concluding that a five percent surcharge was reasonably and uniformly proportionate to the gravity of the offense and therefore could "properly be considered as a form of punishment for the offense." See also State v. Beasley, 580 So. 2d 139, 143 (Fla. 1991) (); Griffin v. State, 946 So. 2d 610, 614-15 (Fla. Dist. Ct. App. 2007) (). Likewise, Florida courts have characterized certain fines and surcharges as "penalties" within the criminal sentencing scheme. See, e.g., Nash v. State, 434 So. 2d 33, 34 (Fla. Dist. Ct. App. 1983) (). The courts of other states have similarly regarded such costs. E.g., People v. James, 479 N.E.2d 344 (Ill. App. Ct. 1985); Schiefer v. State, 774 P.2d 133 (Wyo. 1989).
Further, the courts have distinguished between civil monetary penalties and costs, surcharges, and fines imposed in the criminal context. See, e.g., Griffin v. State, supra, at 615 (); see also City of Duluth v. Morgan, 651 S.E.2d 475, 476 (Ga. Ct. App. 2007). The clear majority of Federal courts of appeals have held that the imposition of costs and other assessments constitutes a form of criminal punishment or penalty. See, e.g., United States v. Jungels, 910 F.2d 1501, 1504 (7th Cir. 1990) (); United States v. Mayberry, 774 F.2d 1018, 1021 (10th Cir. 1985) (); see also United States v. Ashburn, 884 F.2d 901 (6th Cir. 1989) (same); United States v. King, 824 F.2d 313 (4th Cir. 1987) (same); United States v. Smith, 818 F.2d 687 (9th Cir. 1987) (same).2
To the extent that restitution may be relevant as an analogous form of sanction, a majority of courts of appeals likewise consider it to be a form of punishment rather than simply a civil penalty.3 Moreover, the fact that a defendant's ability to pay must be considered before enforcing collection of assessed costs does not mean that their imposition is not punishment. Bearden v. Georgia, 461 U.S. 660, 669-70 (1983) ( .
We conclude that the imposition of costs and surcharges in the criminal sentencing context constitutes a form of "punishment" or "penalty" for purposes of establishing that an alien has suffered a "conviction" within the meaning of section 101(a)(48)(A) of the Act. Consequently, we find that the respondent has been convicted of violating a law relating to a controlled substance and that he is removable as charged. We further conclude that the Immigration Judge erred in terminating the proceedings. In light of this conclusion, we need not reach the question whether the respondent was effectively placed on probation when the adjudication of his guilt was withheld. Accordingly, the DHS's appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
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