Submitted: February 6, 2017
for Review of an Order of the Board of Immigration Appeals
LOKEN, COLLOTON, and KELLY, Circuit Judges.
Andres Mendoza Saenz (Saenz) was ordered deported in December
2014. The Immigration Judge (IJ) found, and the Board of
Immigration Appeals (BIA) affirmed, that Saenz was not
eligible for cancellation of removal or voluntary departure
because he has a prior criminal conviction for a crime
involving moral turpitude (CIMT). Having jurisdiction
pursuant to 8 U.S.C. § 1252, we deny Saenz's
petition for review.
is a native and citizen of Mexico who entered the United
States without inspection in 1998. In January 2011, officers
discovered multiple resident alien cards, Minnesota
driver's licenses, and social security cards upon
executing a search warrant at Saenz's home. In August
2011, a complaint was filed in state court charging Saenz
with Aggravated Forgery in violation of Minnesota Statute
§§ 609.625, subdivisions 1 and 3, and 609.101. In
November 2012, Saenz agreed to participate in the Dakota
County Attorney's Office Adult Community Accountability
Program (the diversion program), which required that he
perform forty hours of community service, remain law-abiding,
pay an unspecified amount of restitution, and pay a $480 fee.
Saenz was obligated to pay this fee even if he was terminated
from the diversion program. The county attorney dismissed the
Aggravated Forgery charge against Saenz after he successfully
completed the requirements of the diversion program.
2013, the Department of Homeland Security (DHS) initiated
removal proceedings against Saenz. He did not contest his
removability, but applied for cancellation of removal or, in
the alternative, voluntary departure. See 8 U.S.C.
§ 1229b(b)(1) (cancellation of removal); id.
§ 1229c (voluntary departure). On December 3, 2014, the
IJ determined that Saenz's participation in the diversion
program following his Aggravated Forgery charge was a
conviction for a CIMT and held that Saenz was therefore
ineligible for cancellation of removal and voluntary
departure. The BIA affirmed the IJ's decision on December
31, 2015. Saenz timely filed a petition for review.
review the BIA's decision as the final agency decision,
but review the IJ's decision to the extent that the BIA
adopted the IJ's findings or reasoning. See
Matul-Hernandez v. Holder, 685 F.3d 707, 710-11 (8th
Cir. 2012). We review the BIA's "legal
determinations de novo, according substantial deference to
the BIA's interpretation of the statutes and regulations
it administers." Id. at 711 (citation omitted).
When confronted with a purely legal question of statutory
interpretation, "we initially examine the statutory
language, and if Congress has spoken clearly on the precise
question at issue, the statutory language controls; however,
if the statute is silent or ambiguous, we defer to the
BIA's interpretation if it is reasonable."
Crespo v. Holder, 631 F.3d 130, 133 (4th Cir. 2011)
(citation omitted); see also Cuadra v. Gonzales, 417
F.3d 947, 950 (8th Cir. 2005); Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43
order to be eligible for cancellation of removal, an alien
must prove, among other things, that he has not been
"convicted" of a CIMT. See 8 U.S.C. §
1229b(b)(1)(C). A charged offense resulting in the
withholding of an adjudication of guilt constitutes a
conviction for immigration purposes where (i) an alien
"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).
Saenz does not dispute that he admitted facts sufficient to
warrant a finding of guilt or the finality of the judgment
against him, but argues that his participation in the
diversion program does not constitute a judicially imposed
participation in alternative programs, and terms of probation
constitute "punishment[s], penalt[ies], or restraint[s]
on the alien's liberty" under the plain language of
§ 1101(a)(48)(ii). See Matter of Cabrera, 24 I.
& N. Dec. 459, 460-62 (B.I.A. 2008) (finding that costs
and surcharges in the criminal sentencing context constitute
penalties for purposes of establishing a conviction under
§ 1101(a)(48)(A)); In re Salazar-Regino, 23 I.
& N. Dec. 223, 228, 234 (B.I.A. 2002) (examining
legislative history, noting that Congress indicated
"that a conviction occurs upon a finding or confession
of guilt, before the term of probation begins, regardless of
whether the state requires further proceedings to determine
the alien's guilt or innocence if probation is
violated" and that "a subsequent dismissal of
charges based solely on rehabilitative goals does not vitiate
the original admission of guilt"); see also De Vega
v. Gonzales, 503 F.3d 45, 49 (1st Cir. 2007)
(restitution payments are "plainly a punishment or
penalty" where failure to make them could ripen into a
guilty plea and lead to further punishment); Uritsky v.
Gonzales, 399 F.3d 728, 734-35 (6th Cir. 2005)
(participation in state youthful offender trainee program
constitutes a penalty for purposes of immigration
conviction); Gill v. Ashcroft, 335 F.3d 574, 576
(7th Cir. 2003) (term of probation is a penalty).
recognized by our sister circuits, Congress defined
"conviction" broadly in § 1101. See,
e.g., Herrera-Inirio v. I.N.S., 208 F.3d 299,
305-06 (1st Cir. 2000); Retuta v. Holder, 591 F.3d
1181, 1186 (9th Cir. 2010) ("The IIRIRA Amendment to the
INA [adding the definition of conviction] expanded on what
categories of deferred adjudications can constitute
convictions[.]"). Subsection 1101(a)(48) clarified that
"even in cases where adjudication is 'deferred,
' the original finding or confession of guilt is
sufficient to establish a 'conviction' for purposes
of the immigration laws." Herrera-Inirio, 208
F.3d at 306 (quoting H.R. Conf. Rep. 104-828, 224, 104th
Cong. 2d Sess. (1996)). Indeed, "[t]he emphasis that
Congress placed on the original admission of guilt
plainly indicates that a subsequent dismissal of charges,
based solely on rehabilitative goals and not on the merits of
the charge or on a defect in the underlying criminal
proceedings, does not vitiate that original admission."
Id. A penalty such as Saenz's participation in
and obligations under the diversion program, following
admission of the alleged conduct, constitutes a penalty or
punishment for purposes of defining a conviction in the
also argues that these penalties were not ordered by a judge,
but the record belies this argument. When Saenz agreed to the
diversion program, he ...