Retuta v. Holder

• Decision Date: 07 January 2010
• Docket Number: No. 04-74855.,04-74855.
• Citation: 591 F.3d 1181
• Parties: Windell Javillonar RETUTA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

591 F.3d 1181

Windell Javillonar RETUTA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 04-74855.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2009.

Decided January 7, 2010.

James Todd Bennett, El Cerrito, CA, for the petitioner.

Bryan Stuart Beier, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A43-380-112.

Before: WILLIAM A. FLETCHER and RICHARD R. CLIFTON, Circuit Judges, and LOUIS H. POLLAK,^* District Judge.

POLLAK, District Judge:

Windell Javillonar Retuta petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ) order that Retuta was removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance violation.

In addressing Retuta's petition, we consider two issues relating to the government proving a "conviction" to establish an alien's removability. First, we determine whether the minute order that the government relied on, which contained acronyms, is sufficiently clear evidence of a criminal conviction in removal proceedings, in light of our recent en banc decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir.2008), that found minute orders sufficient evidence of a conviction during federal sentencing proceedings. Second, turning to the substance of the conviction at issue, we must determine whether the definition of a "conviction" in 8 U.S.C. § 1101(a)(48) includes a judgment that withholds an adjudication of guilt and imposes a sanction other than incarceration — namely a small fine — and simultaneously suspends or stays execution of that sanction. Section 1101(a)(48) defines "conviction" to include proceedings where a formal judgment of guilt has been withheld provided that (1) there has been a finding of guilt or admission of sufficient facts for a finding of guilt, and (2) "some form of punishment, penalty, or restraint on the alien's liberty" has been imposed. 8 U.S.C. § 1101(a)(48)(A). The definition clarifies that suspended periods of incarceration must be considered, id. § 1101(a)(48)(B), but does not address whether immigration consequences attach to the suspension of non-incarceratory punishments.

I. Background

Windell Javillonar Retuta is a twenty-seven-year-old citizen and national of the Philippines who was admitted into the United States as a lawful permanent resident alien on June 5, 1992. The Department of Homeland Security (DHS) served Retuta with a Notice to Appear (NTA) on December 15, 2003, alleging multiple grounds for removal. On January 7, 2004, DHS amended the NTA to bring the total allegations of prior convictions sufficient for removal to four. DHS alleged that Retuta was convicted of (1) buying stolen property, in violation of § 496(a) of the California Penal Code, (2) possession of a controlled substance, methamphetamine, in violation of § 11377(a) of the California Health and Safety Code, (3) use of a controlled substance, in violation of § 11550 of the California Health and Safety Code, and (4) domestic battery, in violation of § 242 and § 243(e) of the California Penal Code.

During removal proceedings before the IJ, the Government chose to proceed only on the controlled substances violations and rejected the opportunity to delay the proceedings in order to submit documentation that would support the other charges. The IJ addressed only the alleged conviction on March 11, 2002 for (1) possession of a controlled substance, methamphetamine, and (2) use of a controlled substance. Retuta argued that the minute order offered to prove this conviction was insufficient because the order was incomprehensible due to unexplained acronyms. The IJ determined that the minute order and criminal complaint sufficiently proved the fact of Retuta's conviction and, thus, DHS had met its burden of proving Retuta removable by clear and convincing evidence. The IJ further stated that because Retuta had previously been granted cancellation of removal and because the conviction at issue occurred after the cancellation of removal, he was not eligible for a second cancellation of removal. Based on his new controlled substance violations, Retuta was ordered removed to the Philippines.

On August 26, 2004, Retuta filed an appeal with the Board of Immigration Appeals. Retuta argued to the BIA that: (1) the minute order was insufficient to sustain the charge of removal; (2) the controlled substances violations only resulted in a stayed fine that did not rise to the level of a "punishment, penalty or restraint on [his] liberty" under 8 U.S.C. § 1101(a)(48)(A)(ii); and (3) Retuta's conviction for possession and use of a controlled substance might be entitled to expungement under a state equivalent to the Federal First Offender Act (FFOA), 18 U.S.C § 3607.

The BIA dismissed the appeal. The BIA ruled that the minute order and criminal complaint established that Retuta had pled guilty to possession of methamphetamine, a controlled substance. The BIA did not refer to the additional count contained in the minute order of use of a controlled substance. The BIA also ruled that a fine, even if suspended, is a "punishment" within the meaning of 8 U.S.C. § 1101(a)(48)(A)(ii). Lastly, it found that Retuta's prior drug convictions rendered him ineligible for relief from removal under the provisions of the FFOA.

In making its determination that Retuta pled guilty to possession of methamphetamine, the BIA examined the minute order, which contains numerous abbreviations without any key to decode them. The minute order is a preprinted form with various boxes and blanks. The order has the boxes checked for "Atty Present," "COP PLEADS," "GUILTY," "DEJ Granted," and "FINE STAYED." "DRF" is circled with $100 written next to it. The BIA stated that the minute order, though perhaps "confusing," was "not incomprehensible" and was sufficiently informative to establish that Retuta had pled guilty to possession of a controlled substance. The BIA found the document proved that Retuta pled guilty to possession of a controlled substance with a deferred entry of judgment and a suspended fine.

To find that a stayed fine constituted a "conviction" within the meaning of section 1101(a)(48), the BIA concluded that "[t]he imposition of a fine, regardless of if it is stayed, constitutes some form of punishment." To support this position, the BIA cited its prior decision in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), for the proposition that a "suspended fine [is] sufficient to find the existence of a conviction."

The BIA also decided that Retuta could not take advantage of the FFOA, which allows a single conviction for possession of a controlled substance to be expunged, thus not rendering an immigrant removable. In determining whether Retuta's conviction qualified under the FFOA, the BIA relied upon a computer printout of Retuta's criminal history, commonly referred to as a rap sheet. The rap sheet shows other convictions for possession of a controlled substance.

II. Jurisdiction and Standard of Review

This court has jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). A court of appeals reviews questions of law de novo. Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). Questions of law include "not only `pure' issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact." Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (citations omitted). The government bears the burden of proving by clear, unequivocal, and convincing evidence that the alien is removable. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir.2007).

III. Discussion

A. Was the Minute Order Sufficient Proof of the Outcome of the State Court Proceedings?

Retuta argues that the minute order used to prove his 2002 conviction for possession of a controlled substance was insufficient to prove the fact of his conviction by the required clear, unequivocal, and convincing evidence standard because the minute order contains several unexplained acronyms. The BIA addressed this argument and noted that "[a]lthough the document may be confusing, it is not incomprehensible and it contains sufficient information to determine that the respondent pled guilty to possession of a controlled substance under section 11377(a) of the California Health and Safety Code." We find that the BIA did not err in its conclusion.

First, the INA makes clear that "[o]fficial minutes of a court proceeding" are sufficient "proof of a criminal conviction." 8 U.S.C. § 1229a(c)(3)(B)(iv). Additionally, in United States v. Snellenberger, 548 F.3d 699 (9th Cir.2008) (en banc), this court recently addressed the analogous question of whether a California state court minute order sufficiently proved a conviction, resulting in a career offender sentencing enhancement. There, we held that the minute order described the conviction with sufficient reliability that it could be used for sentencing. Id. at 702.

The minute order here does not present enough ambiguity to prevent us from applying Snellenberger in the context of proving a conviction in immigration proceedings. While the minute order would be clearer with an explanation of its acronyms, it contains standard terms that support a conclusion that Retuta was convicted of possession of a controlled substance.¹ The minute order has boxes checked for "PLEADS," "GUILTY," and "DEJ Granted." Under "Violation" the order states that "HS11377(A)" was Count Two. The record contains the criminal complaint, which lists possession of a controlled substance in violation of § 11377(a) of the California Health and Safety Code as Count Two. One does not need a definition of the terms used to conclude that Retuta pled guilty and received a deferred entry of...