Uritsky v. Gonzales, 03-4331.

• Decision Date: 07 March 2005
• Docket Number: No. 03-4331.,03-4331.
• Citation: 399 F.3d 728
• Parties: Alexander Grigorievich URITSKY, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 728

399 F.3d 728

Alexander Grigorievich URITSKY, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-4331.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2005.

Decided and Filed: March 7, 2005.

ARGUED: Richard A. Kulics, Immigration Law Center, Birmingham, Michigan for Petitioner. Norah Ascoli Schwarz, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Richard A. Kulics, Immigration Law Center, Birmingham, Michigan, for Petitioner. Linda S. Wendtland, Michelle Thresher, United States Department of Justice, Washington, D.C., for Respondent.

Before: NORRIS and GIBBONS, Circuit Judges; TODD, Chief District Judge.^*

OPINION

ALAN E. NORRIS, Circuit Judge.

Alexander Grigorievich Uritsky contests a decision of the Board of Immigration Appeals ("Board") that ordered him removed from the United States. In 2002, Uritsky pleaded guilty to one count of third degree sexual conduct in violation of Mich. Comp. Laws § 750.520d(1)(a). He received a sentence of probation and a designation of "youthful trainee" under Michigan's Holmes Youthful Trainee Act ("YTA"), Mich. Comp. Laws §§ 762.11-16. Despite his designation as a "youthful trainee," we conclude that Uritsky's "conviction" counts as an aggravated felony as defined by § 101(a)(48)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(48)(A), and he therefore is subject to removal.

I.

Uritsky is a native of Ukraine and a citizen of Israel. He entered the United States in 1996 as an eleven year-old, non-immigrant and became a lawful permanent resident on January 4, 2002. When he was seventeen, Uritsky had intercourse with a girl of fourteen. He subsequently pleaded guilty to third degree sexual conduct, Mich. Comp. Laws § 750.520d(1)(a), which prohibits sexual penetration of another person who is between thirteen and sixteen years old. Under Michigan law, the maximum sentence for this offense is fifteen years of imprisonment. Mich. Comp. Laws § 750.520d(2).

Judgment against Uritsky was entered on September 24, 2002, and included two years of probation, fines, and costs. The judgment also provided that "[n]o judgment of conviction is entered. The defendant is assigned to youthful trainee status[.]"

Because of this conviction the Department of Homeland Security ("DHS") served Uritsky with a Notice to Appear on November 2, 2002, which charged him with "removability" on the ground that he committed an aggravated felony offense. The INA provides, "Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Among other things, the INA defines "aggravated felony" as "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). The same section of the INA defines "conviction" as follows:

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).

In response to the Notice to Appear, Uritsky filed a motion to terminate the proceedings, reasoning that his adjudication as a youthful trainee did not constitute an aggravated felony conviction as defined by the INA. The YTA provides that "if an individual pleads guilty to a criminal offense, committed on or after the individual's seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee." Mich. Comp. Laws § 762.11(1). Further, "If consideration of an individual as a youthful trainee is not terminated and the status of youthful trainee is not revoked as provided in section 12 of this chapter, upon final release of the individual from the status as youthful trainee, the court shall discharge the individual and dismiss the proceedings." Mich. Comp. Laws § 762.14(1) (footnote omitted). Moreover, "An assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime and ... the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee." Mich. Comp. Laws § 762.14(2).

In addition to the language of the YTA, Uritsky relied upon an opinion of the Board, In re Miguel Devison-Charles ("Devison"), 22 I & N Dec. 1362, 2000 WL 1470461 (BIA 2000), to support his view that he had not committed the aggravated felony required by the INA to trigger removal. In Devison, the Board considered whether an adjudication as a "youthful offender" under the New York criminal code could nonetheless constitute an aggravated felony conviction as defined by the INA. The Board compared the New York scheme to the Federal Juvenile Delinquency Act ("FJDA"), 18 U.S.C. §§ 5031-42, and concluded, "[T]he New York procedure under which the respondent was adjudicated a youthful offender... is sufficiently analogous to the procedure under the FJDA to classify that adjudication as a determination of delinquency, rather than as a conviction for a crime." Devison at 1367. In its reasoning, the Board drew a critical distinction between a finding of delinquency, which involves "status" rather than guilt or innocence, and deferred adjudication or expungement. Id. at 1371. Deferred adjudications constitute convictions under the INA while findings of delinquency do not:

[J]uvenile delinquency and youthful offender adjudications are not akin to expungement or deferred adjudication procedures. Under the former, proceedings are civil in nature and the adjudication of a person determined to be a juvenile delinquent or youthful offender is not a conviction ab initio, nor can it ripen into a conviction at a later date. In the case of an expungement or deferred adjudication, the judgment in the criminal proceeding either starts out as a "conviction" that can be "expunged" upon satisfactory completion of terms of punishment and petition to the court, or as a judgment that is deferred pending similar satisfaction of conditions of punishment. In either case, however, neither expungement nor deferral can be presumed, and the original judgment of guilt may remain, or ripen into, a "conviction" under state law. This is a dispositive difference, because a juvenile adjudication cannot become a conviction based on the occurrence or nonoccurrence of subsequent events. To eliminate these distinctions and overrule our well- established precedents on these issues, we would require clearer direction from Congress that it intended juvenile adjudications to be treated as convictions for immigration purposes.

Id. at 1371-72 (footnote omitted). In short, the instant case requires us to determine whether the Michigan YTA is closer to a deferred adjudication, in which case Uritsky is subject to removal, or to a finding of delinquency.

The immigration judge determined that the Michigan scheme constituted a finding of delinquency as defined by Devison and terminated proceedings. The Board reversed based on the following rationale:

We agree with the DHS that the respondent has been convicted for immigration purposes. In Matter of Devison, supra, we found that an adjudication of youthful offender status pursuant to N.Y.Crim. Pro. Law § 720 does not constitute a conviction under section 101(a)(48)(A) of the Act because it is analogous to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 50131-5042 ("FJDA"), in several ways, the most notable being that, once an individual is determined to be a youthful offender under New York law, his or her conviction is vacated. Because the vacation of the conviction does not depend on the individual's future good behavior, we found that the adjudication is not an expungement or other rehabilitative act. Moreover, we concluded that a youthful offender adjudication does not, in fact, fit within the scope of the definition of the term "conviction" contained in section 101(a)(48)(A) of the Act.

In the present case, the respondent was sentenced as a youthful trainee under MCL § 762.11 et seq. for his offense of criminal sexual conduct in the third degree. The respondent claims that MCL § 762.11 is analogous to the FJDA and New York law, but we disagree. As the DHS has explained, a criminal action against an individual is not completely vacated under Michigan law until an individual completes his or her probation or sentence. And a judge may revoke the youthful trainee status at any time. These distinctions between the Michigan youthful trainee program and the FJDA are significant and make the Michigan program more analogous to a rehabilitative expungement than an adjudication of juvenile delinquency. We therefore agree with the DHS that the grant of youthful trainee status in the respondent's case qualifies as a conviction under section 101(a)(48)(A) of the Act.

Decision of the Board of Immigration Appeals, Oct. 6, 2003 at 2 (citations omitted). The Board ordered Uritsky removed from the United States but remanded the matter to allow him to choose a country for removal.

II. Standard of Review

To the extent that this appeal involves statutory construction of the INA, we accord the DHS deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). In Aguirre-Aguirre, the Court reviewed the manner in which the agency construed the INA's definition of the term ...