Planes v. Holder

• Decision Date: 05 June 2012
• Docket Number: No. 07–70730.,07–70730.
• Parties: Michael Angelo Samonte PLANES, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

686 F.3d 1033

12 Cal. Daily Op. Serv. 6127

2012 Daily Journal D.A.R. 7424

Michael Angelo Samonte PLANES, Petitioner,

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

No. 07–70730.

United States Court of Appeals, Ninth Circuit.

June 5, 2012.

Elsa Ines Martinez, Esquire, Law Offices of Elsa Martinez, PLC, Los Angeles, CA, for Petitioner.

David V. Bernal, Assistant Director, Robert Markle, Senior Litigation Counsel, Liza Murcia, Oil, U.S. Department of Justice,Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Agency No. A037–329–028.

Before: HARRY PREGERSON, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

Order; Concurrence by Judge IKUTA; Dissent by Judge REINHARDT.

ORDER

The panel has voted to deny Petitioner's Petition for Panel Rehearing En Banc. Judges Callahan and Ikuta have voted to deny the en banc petition. Judge Pregerson has voted to grant the en banc petition.

A judge of this court called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R.App. 35(f).

The petition for rehearing en banc is therefore DENIED.

IKUTA, Circuit Judge, with whom O'SCANNLAIN, CALLAHAN, and BEA, Circuit Judges, join, concurring in the denial of rehearing en banc:

The dissent from the denial of rehearing en banc neglects a salient point: Every circuit that has given a reasoned opinion on the interpretation of “conviction” in 8 U.S.C. § 1101(a)(48)(A) has reached the same conclusion as the panel does here, namely, that “[t]he term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court,” regardless whether appeals have been exhausted or waived. 8 U.S.C. § 1101(a)(48)(A); see Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir.2011); Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331–32 (2d Cir.2007); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004) (per curiam); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999); see also Griffiths v. INS, 243 F.3d 45, 50–51 (1st Cir.2001).

Most recently, the Tenth Circuit explained in no uncertain terms that Congress defined “conviction” in § 1101(a)(48)(A) “specifically to supplant a prior BIA interpretation that had required deportation to wait until direct appellate review (though never collateral review) of the conviction was exhausted or waived.” Waugh, 642 F.3d at 1284 (quoting United States v. Adame–Orozco, 607 F.3d 647, 653 (10th Cir.), cert. denied,––– U.S. ––––, 131 S.Ct. 368, 178 L.Ed.2d 238 (2010)) (internal quotation marks omitted). “From this,” the Tenth Circuit concluded, “it follows that an alien is lawfully deportable as soon as a formal judgment of guilt is entered by a trial court.” Id. (quoting Adame–Orozco, 607 F.3d at 653) (internal quotation marks omitted); see also United States v. Saenz–Gomez, 472 F.3d 791, 794 (10th Cir.2007) (rejecting the argument that Congress intended the definition of “conviction” in § 1101(a)(48)(A) to require exhaustion or waiver of appeals, and instead relying on the literal language to hold that the filing of a written judgment against the petitioner constituted a “conviction” for purposes of the statute).

Other circuits have reached similar conclusions. In Puello, the Second Circuit stated: “IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.” 511 F.3d at 332. This conclusion is directly on point and identical to the panel's conclusion here. Two subsequent unpublished opinions have reiterated this conclusion,¹ and no Second Circuit opinion has disagreed.

In Montenegro, the Seventh Circuit stated:

Before the enactment of IIRIRA, the Supreme Court required that a deportation proceeding be based on a conviction that had sufficient ‘finality,’ which we interpreted to mean that the alien no longer had any direct appeal pending. IIRIRA, however, treats an alien as ‘convicted’ once a court enters a formal judgment of guilt. IIRIRA eliminated the finality requirement for a conviction.... Under IIRIRA, therefore, Montenegro's conviction in April 1996 of an aggravated felony rendered him removable.

Montenegro, 355 F.3d at 1037–38 (emphasis added) (internal citations omitted).

In Moosa, the Fifth Circuit considered whether Congress intended to retain the “finality requirement” that the BIA had “superimposed” on the definition of “conviction,” Moosa, 171 F.3d at 1000, and concluded that the finality requirement had been eliminated by the new statutory language of IIRIRA. Id. at 1001–02 (quoting the current version of § 1101(a)(48)(A) and concluding that it eliminated the finality requirement).

Unable to cite a single circuit court that has adopted their proposed interpretation, the dissent instead argues that we should ignore the interpretation and reasoning of our sister circuits because the statutory construction issue in those cases arose in different contexts. Dissental at 1039 n. 4. Each of our sister circuits, however, interpreted the same statutory language as the panel interpreted here. As the Supreme Court unanimously held, the same words in the same statute have the same meaning, regardless of the context. See Leocal v. Ashcroft, 543 U.S. 1, 12 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

Nor does the dissent offer any persuasive justification for rejecting the reasoned decisions of our sister circuits. The dissent relies primarily on a BIA decision issued before Congress enacted the current version of § 1101(a)(48)(A), in which the BIA stated that a conviction is not final “until direct appellate review of the conviction has been exhausted or waived.” See Matter of Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (B.I.A.1988). According to the dissent, the panel should have followed Ozkok, because the lack of any express statement in the legislative history that Congress rejected this finality requirement means that the panel should read it into the amended statute. Dissental at 1039–40. The dissent's reliance on Congressional silence to construe a statute is clearly wrong: when the plain language of the statute is clear, it is improper to look for hidden meanings within the legislative history, much less within the silences of the legislative history. See Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730, 749, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (rejecting the argument that Congress's failure to expressly reject judicial interpretations of an earlier version of a statute meant that Congress intended to incorporate that interpretation in the amended statute, and noting that “[o]rdinarily, Congress' silence is just that—silence” (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)) (internal quotation marks omitted)).

Moreover, to the extent a court might consider what Congress chose not to say, it would have to recognize that when Congress “adopted almost verbatim the definition set out by the BIA in Matter of Ozkok,” dissental at 1039, Congress chose not to include the very statement in Ozkok on which the dissent relies. Similarly, Congress also decided not to include Ozkok's conclusion that a deferred adjudication counts as a “conviction” only if it is not subject to appeal or other proceedings. See Ozkok, 19 I. & N. Dec. at 552. In light of these silences, it is most reasonable to infer that Congress intentionally omitted any finality requirement from its definition of “conviction.” And even if it was Congress's intent to import the Ozkok finality requirement into the statute, there is a straightforward remedy: Congress may revise the plain language of the statute.

Finally, the dissent is mistaken in asserting that the panel erred by failing to remand to the BIA to obtain its interpretation of § 1101(a)(48)(A) first. It is well established that the court, not the BIA, is responsible for statutory interpretation. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ( “The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”); Federiso v. Holder, 605 F.3d 695, 697 (9th Cir.2010) (“Only if we determine that a statute is ambiguous do we defer to the [BIA's] interpretation. We may not accept an interpretation clearly contrary to the plain meaning of a statute's text.”) (internal citations omitted). Because the plain language of § 1101(a)(48)(A) is unambiguous, the panel was correct to address this issue in the first instance.²

In sum, the panel decided the issue before it in a manner consistent with the plain language of the statute and with all other circuits that have ruled on the issue. The panel's approach and conclusion were correct, as was the decision of the court not to rehear the case en banc.

REINHARDT, Circuit Judge, with whom Chief Judge KOZINSKI and Judges PREGERSON, THOMAS, WARDLAW, W. FLETCHER, and PAEZ join, dissenting from the denial of rehearing en banc:

The three-judge panel in this case decided a question of exceptional importance: whether immigrants in our country, lawful and unlawful, can be deported immediately after a trial court enters a judgment of guilt against them in a criminal case, before they have had the opportunity to obtain appellate review of their convictions. Reasoning, inexplicably, that the Illegal Immigration Reform and Immigrant ResponsibilityAct (“IIRIRA”), in enacting the definition of conviction in 8 U.S.C. § 1101(a)(48)(A), eliminated the finality rule which barred deportations pending appellate review, the panel held that such an unreasonable practice is now lawful. It did so despite the fact that the Board of Immigration Appeals (“BIA”) did not mention or consider the issue in its opinion, that the parties...