Vernon v. Cuccinelli
| Decision Date | 25 January 2021 |
| Docket Number | Civil Action No. 1:19-cv-02169-DDD |
| Parties | ADAM VERNON, and BEATA VERNON Plaintiffs, v. KENNETH CUCCINELLI, Acting Director for United States Citizenship and Immigration Services ("CIS"), WILLIAM BARR, Attorney General of the United States, CHAD F. WOLF, Acting Secretary for the Department of Homeland Security ("DHS"), UNITED STATES DEPARTMENT OF HOMELAND SECURITY, and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. |
| Court | U.S. District Court — District of Colorado |
Plaintiffs challenge the United States Citizenship and Immigration Services' denial of Mr. Adam Vernon's visa application on behalf of his wife, Beata Vernon. The government based its denial on a finding that Mr. Vernon had been "convicted of a specified offense against a minor" and therefore is ineligible to sponsor his wife's visa application. Mr. Vernon disputes this, arguing that his deferred judgment and sentence under Colorado law was not a "conviction" for purposes of the relevant federal immigration laws. But Mr. Vernon's deferred judgment and sentence was a "conviction" under the plain meaning of the relevant statute. So Mr. Vernon's claims for relief are denied.
The relevant criminal charges against Mr. Vernon arose out of an incident between Mr. Vernon and his then-17-year-old step-daughter. (Administrative Record ("AR"), Doc. 18 at pp. 61-74.) Mr. Vernon eventually pleaded guilty to misdemeanor "harassment" in violation of Colo. Rev. Stat. § 18-9-111(1)(a), resulting in a judgment of conviction and a sentence of three years of probation. (Id. at pp. 37, 41, 43.)
Mr. Vernon also pleaded guilty to attempted sexual assault on a child by one in a position of trust in violation of Colo. Rev. Stat. § 18-3-405.3(1). (AR at p. 44.) For that charge, the court, the prosecutor, and Mr. Vernon agreed to invoke Colorado's deferred sentencing statute, and the court entered a "deferred judgment sentence . . . set for three years." (Doc. 1 at ¶ 41; Doc. 15 at ¶ 41.) Pursuant to a stipulation, Mr. Vernon agreed to several "Conditions of Probation" due to his guilty plea for the attempted sexual assault charge. (See AR at pp. 46-58.) After complying with that sentence, the state court ordered withdrawal of Mr. Vernon's guilty plea as to the attempted sexual assault charge and dismissed that charge with prejudice. (Doc. 1 at ¶¶ 42-43; Doc. 15 at ¶¶ 42-43.)
Mr. Vernon later married Beata Vernon, a citizen of Poland. (Doc. 1 at ¶ 44.) Mr. Vernon filed an I-130 visa petition on behalf of Ms. Vernon, but the government denied that petition on the grounds that Mr. Vernon was "convicted of a specified offense against a minor" under 8 U.S.C.§ 1154(a)(1)(A)(viii)(I). (Id. at ¶ 45-53; AR at pp. 2-7.) Mr. Vernon now seeks to vacate that decision.
Colorado's deferred sentencing statute allows certain offenders to plead guilty yet avoid entry of a judgment of conviction and traditional post-judgment sentencing. The statute provides in relevant part:
In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.
Colo. Rev. Stat. § 18-1.3-102(1)(a). If the statute is invoked, the defendant may enter into a written stipulation approved by the prosecutor and the court, and the "conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation." Id. § 18-1.3-102(2). Upon full compliance with the stipulated conditions, the previous guilty plea "shall be withdrawn, and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice." Id.
Colorado law elsewhere defines "acceptance by the court of a plea of guilty" as "a conviction for the offense." Colo. Rev. Stat. § 16-7-206(3). And Colorado courts have held that a court's acceptance of a guilty plea prior to deferring judgment and sentencing nevertheless "yields a conviction." See M.T. v. People, 269 P.3d 1219, 1221-22 (Colo. 2012) (). But a defendant "generally is no longer 'convicted,'" at least for some state-law purposes, after completion of a deferred sentence. See McCulley v. People, 463 P.3d 254, 258 (Colo. 2020) ().
Pursuant to the Immigration and Nationality Act, United States citizens can act as a family sponsor and petition for certain family members, including spouses, to become lawful permanent residents. See 8 U.S.C. § 1154(a)(1)(A)(i). Lawful permanent residents may also act as a family sponsor under a similar sub-section in the statute. Id. § 1154(a)(1)(B)(i)(I). But both citizens and lawful permanent residents are barred from sponsoring an alien if they have "been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk" to the sponsored alien. Id. §§ 1154(a)(1)(A)(viii)(I) (), 1154(a)(1)(B)(i)(I)1 (). No such determination has been made here, so the only question is whether Mr. Vernon has been "convicted of a specified offense against a minor."
The Immigration and Nationality Act, as amended by the Adam Walsh Child Protection and Safety Act of 2006, provides a definition of "a specified offense against a minor." 8 U.S.C. § 1154(a)(1)(A)(viii)(II);34 U.S.C. § 20911(7). That definition includes various offenses, including "criminal sexual conduct involving a minor." 34 U.S.C. § 20911(7)(H).2 But the Immigration and Nationality Act only defines "conviction" as it applies to aliens (which includes lawful, permanent residents), and does not define "conviction" or "convicted of" as applied to United States citizens.
The Immigration and Nationality Act defines "conviction, with respect to an alien" as:
8 U.S.C. § 1101(a)(48)(A) (emphasis added). There is no corresponding definition with respect to United States citizens.
Pursuant to the Administrative Procedure Act, this court must "hold unlawful and set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). If Congress's meaning is clear on an issue, the court must give effect to that "unambiguouslyexpressed intent" found in a federal statute. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). But if a statute is ambiguous or silent on an issue, the court must defer to an administrative agency's reasonable interpretation of the statute: a process known as Chevron deference. Id. at 842-43. In some cases, particularly those involving statutory interpretation, decisions by the Board of Immigration Appeals may be entitled to Chevron deference. Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017).
"Even under Chevron, we owe an agency's interpretation of the law no deference unless, after employing traditional tools of statutory construction, we find ourselves unable to discern Congress's meaning." SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (internal quotation marks and citation omitted). "In determining whether a statute is unambiguous, courts are to 'employ traditional tools of statutory construction.'" Am. Fed'n of Gov't Employees, Local 1592 v. Fed. Labor Relations Auth., 836 F.3d 1291, 1295 (10th Cir. 2016) (internal quotation marks and citation omitted). "These tools include examination of the statute's text, structure, purpose, history, and relationship to other statutes." Id. "Even a statutory provision whose words might have multiple meanings is not necessarily ambiguous." Id. "Ambiguity is a creature not of definitional possibilities but of statutory context." Brown v. Gardner, 513 U.S. 115, 118 (1994).
The only dispute here is whether Mr. Vernon's deferred sentence and judgment renders him "convicted of" the relevant offense for purposes ofthe Immigration and Nationality Act.3 Both sides appear to agree that, if the alien-specific definition of "conviction" found in 8 U.S.C. § 1101(a)(48)(A) applied to a United States citizen like Mr. Vernon, then that definition would cover Mr. Vernon's deferred judgment and sentence, and he would not be eligible to sponsor Ms. Vernon. That broad definition merely requires that a party enter a guilty plea, no contest plea, or some other admission of guilt and receive some sort of "punishment, penalty, or restraint on the alien's liberty" as a consequence. 8 U.S.C. § 1101(a)(48)(A).
Where the parties differ is on whether that definition should...
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