Planes v. Eric H. Holder Jr.

• Decision Date: 05 July 2011
• Docket Number: Nos. 07–70730.,s. 07–70730.
• Citation: 2011 Daily Journal D.A.R. 9994,652 F.3d 991,11 Cal. Daily Op. Serv. 8339
• Parties: Michael Angelo Samonte PLANES, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 991

11 Cal. Daily Op. Serv. 8339

2011 Daily Journal D.A.R. 9994

Michael Angelo Samonte PLANES, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 07–70730.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2011.Filed July 5, 2011.

Elsa I. Martinez, Law Offices of Elsa Martinez, PLC, Los Angeles, CA, for petitioner Michael Angelo Samonte Planes.Liza S. Murcia, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent Eric H. Holder Jr.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A037–329–028.Before: PAMELA ANN RYMER, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Petitioner Michael Angelo Planes petitions for review of a final order of removal. An Immigration Judge (IJ) ordered Planes removed pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for violation of California Penal Code § 476a(a) (passing a bad check with intent to defraud), and his 2004 conviction for violating 18 U.S.C. § 1029(a)(3) (possession of 15 or more access devices with intent to defraud). The IJ also exercised his discretion to deny Planes's request for cancellation of removal. The Board of Immigration Appeals (BIA) affirmed the removal order and discretionary denial. Planes petitions for review of the BIA's decision. Because we conclude (1) that Planes stands convicted of two crimes involving moral turpitude, for each of which a sentence of a year or more may be imposed, and which did not arise out of a common criminal scheme; and (2) that the IJ's denial of the cancellation request was a discretionary decision as to which Planes has not raised a colorable legal or constitutional claim, we lack jurisdiction over, and therefore dismiss, the petition for review. 8 U.S.C. § 1252(a)(2)(B)(I), (C).

I

Planes is a native and citizen of the Philippines and a lawful permanent resident of the United States. After entering the United States in July 1981, he sustained two relevant criminal convictions. In 1998, he pleaded guilty and was convicted of delivering or making a check with insufficient funds with intent to defraud, in violation of California Penal Code § 476a(a). In 2004, he pleaded guilty to and was convicted of possessing 15 or more “access devices,” in violation of 18 U.S.C. § 1029(a)(3). Planes subsequently appealed the sentence imposed for the § 1029(a)(3) offense, but did not appeal the conviction itself. We remanded Planes's challenge to the sentence to the district court “for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084–85 (9th Cir.2005).” ¹ On remand, the district court has not yet issued any decision regarding Planes's sentence.

On September 20, 2005, the former Immigration and Naturalization Service ² issued Planes a notice to appear, alleging that Planes was removable due to his convictions for two or more crimes involving moral turpitude (namely, the two offenses described above) not arising out of the same criminal scheme, pursuant to Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(ii).³ At the hearing, the IJ held that Planes was removable on that ground, and also denied Planes's request for cancellation of removal in an exercise of discretion.

Planes appealed to the BIA. He argued that the IJ had erred in considering his conviction for the § 1029(a)(3) offense because he had not yet been resentenced,⁴ and “thus it is not a final conviction that the IJ or BIA can review.” Further, he argued that neither of his convictions constituted a crime involving moral turpitude. The BIA affirmed the IJ, holding that the two prior offenses under California Penal Code § 476a(a) and 18 U.S.C. § 1029(a)(3) were both categorically crimes involving moral turpitude, because “they are defined by reference to the intent to defraud.” The BIA also held that the § 1029(a)(3) conviction constituted a “conviction” for immigration purposes, pursuant to § 1101(a)(48)(A), even though the district court was “entertaining arguments as to whether his sentence should be modified” due to Booker. Finally, the BIA affirmed the IJ's discretionary decision denying Planes's request for cancellation of removal, concluding that the IJ had thoroughly weighed both the positive and negative factors in Planes's history and reached an appropriate conclusion. Planes filed a timely petition for review in this court.

II

Planes argues that the BIA erred in concluding that he was removable under § 1227(a)(2)(A)(ii) because he was not “convicted of two or more crimes involving moral turpitude.” First, he claims that his conviction under § 1029(a)(3) did not count for purposes of § 1227(a)(2)(A)(ii), because it was not yet final, and that it was therefore improper to attach any immigration consequences to the judgment of guilt. Second, he argues that violations of §§ 476a(a) and 1029(a)(3) are not categorically crimes involving moral turpitude and that the agency erred in treating them as such.

A

We first turn to Planes's argument that he was not “convicted” for violating § 1029(a)(3) because the district court had not yet ruled on the sentencing issue after the Ameline remand, and because he was entitled to bring a further appeal after the district court did so.

In order to address this argument, we must first interpret the definition of “conviction” set forth in the INA:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).

Section 1101(a)(48)(A) provides two different definitions of “conviction” as indicated by the use of the disjunctive “or” between the first definition of “conviction” (“a formal judgment of guilt of the alien entered by a court”) and the second definition (“ or, if adjudication of guilt has been withheld,” the circumstances described in subsections (i) and (ii)). Under the first definition, a “conviction” means that a court has entered “a formal judgment of guilt of the alien.” As a general rule, and as a matter of logic, a defendant cannot appeal a conviction until after the entry of a judgment of guilt. See, e.g., Fed. R.App. P. 4(b). Therefore, under this first definition, a “conviction” for purposes of § 1101(a)(48)(A) exists once the district court enters judgment, notwithstanding the availability of an appeal as of right.⁵

Planes urges us to deviate from the plain language of the statute and hold that an alien does not stand “convicted” for immigration purposes until any direct appeals as of right have been waived or exhausted. In making this argument, Planes relies on case law predating the enactment of a statutory definition for “conviction” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which supports such a finality requirement. Before IIRIRA the Supreme Court indicated (in a two-sentence decision) that a conviction needs to attain “finality” in order “to support an order of deportation” under the INA. Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955) (mem.). Interpreting Pino, we concluded that a criminal conviction may not be considered by the immigration authorities until any appeals as a matter of right have been exhausted. Morales–Alvarado v. INS, 655 F.2d 172, 175 (9th Cir.1981); accord Grageda v. INS, 12 F.3d 919, 921 (9th Cir.1993); Hernandez–Almanza v. INS, 547 F.2d 100, 103 (9th Cir.1976). These cases are not applicable to our interpretation of § 1101(a)(48)(A), however, because they were decided before the enactment of this statutory definition of “conviction” which supplants our prior judicially-created standards. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 52 L.Ed.2d 707 (discussing Congress's authority to alter the interpretation of federal statutes by passing new legislation). We are bound by the subsequently enacted statute. See Metoyer v. Chassman, 504 F.3d 919, 932–33 (9th Cir.2007).

Planes also urges that a plain-language interpretation of § 1101(a)(48)(A) would lead to unfair results because an alien could be “convicted” and removed from the United States even when an appeal as of right was pending. He asserts that if the alien obtained appellate relief outside of the ninety-day period for filing a motion to reopen, 8 C.F.R. § 1003.2(c)(2), or if the petitioner were number-barred from filing a motion to reopen, see id., the BIA would lack jurisdiction over such a motion and therefore could not provide any relief, see id. § 1003.2(c)(2), (d).

This argument also fails. Regardless of our view on the wisdom or efficacy of Congress's policy choices, we are not free to read in additional elements where the legislature has declined to include them. Jones v. Bock, 549 U.S. 199, 216–17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). “No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute.” United States v. Goldenberg, 168 U.S. 95, 103, 18 S.Ct. 3, 42 L.Ed. 394 (1897). We also note that at least some avenues of relief would remain open to an alien who was removed with an appeal pending. For example, an alien's departure from the United States while in removal proceedings does not itself preclude the alien from filing a motion to reopen if the alien subsequently obtains reversal or vacatur of a conviction that formed a key part of the basis of the alien's...