United States Court of Appeals
For the First Circuit
No. 00-1018
ANTONIO VIEIRA GARCÍA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Thomas L. Mirza, with whom Audette, Bazar & Gonzalez, Inc.,
were on brief, for petitioner.
Randy Olen and Olen Law Offices on brief for Rhode Island
Affiliate, American Civil Liberties Union, amicus curiae.
Julia K. Doig, Attorney, Office of Immigration Litigation,
United States Department of Justice, with whom, David W. Ogden,
Assistant Attorney General, Civil Division, Mark C. Walters,
Assistant Director, Office of Immigration Litigation, and
Margaret J. Perry, Senior Litigation Counsel, Office of
Immigration Litigation, were on brief, for respondent.
February 21, 2001
BOWNES, Senior Circuit Judge. This case is an attack
on a deportation order holding the petitioner removable as
charged. The issue is whether the immigration judge (IJ) and
the Board of Immigration Appeals (BIA) properly found that the
petitioner was "convicted" and therefore subject to deportation
when he was seventeen years of age at the time he committed the
criminal offense.
I.
We state the facts as recited in the administrative
record. Petitioner Antonio Vieira Garcia is a permanent
resident of the United States. Originally from Cape Verde, he
entered this country with his family on December 22, 1987, when
he was nine years old. In March 1996, the petitioner committed
a criminal offense, 1 and the State of Rhode Island filed a
1 We are not entirely sure what the offense was because
that charge is not part of the current proceeding. In his
brief, the petitioner says that he committed an assault with a
deadly weapon. The administrative record contains no copies of
the criminal records from the petitioner's first offense. The
petitioner now, for the first time, attempts to supplement the
record by submitting an appendix with copies of those court
records. The respondent has moved to strike the records from
the appendix on the grounds that they are not properly before
this court because they pertain to matters outside the
administrative record. We agree and grant the respondent's
motion to strike. See 8 U.S.C. § 1252(b)(4)(A) (“the court of
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delinquency petition in Rhode Island Family Court. The petition
was dismissed, however, and the petitioner was charged as an
adult.2 As we understand it, the case against the petitioner was
eventually dropped.
On August 26, 1996, the petitioner attempted to steal
platinum tire rims from an automobile in violation of R.I. Gen.
Laws §§ 11-41-6, 11-41-5, and 11-41-1. At the time of this
offense, the petitioner was four days shy of his eighteenth
birthday. Because he had been waived out of juvenile court
after the first offense, he was charged as an adult for the
second offense. See R.I. Gen. Laws § 14-1-7.1(c) (“waiver of
jurisdiction over a child . . . shall constitute a waiver of
jurisdiction over that child for the offense upon which the
motion is based as well as for all pending and subsequent
offenses of whatever nature . . . .”).
The petitioner pled guilty to the charges and was
sentenced to a term of imprisonment of ten years, with two years
to serve, eight years suspended, and eight years probation. The
appeals shall decide the petition [for review] only on the
administrative record on which the order of removal is based.”).
2 It is not entirely clear whether the defendant
voluntarily waived himself out of the delinquency proceedings.
That fact is irrelevant, however; the fact remains that he was
waived out of delinquency proceedings and was charged as an
adult.
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Immigration and Naturalization Service (“INS”) brought removal
proceedings against the petitioner on the ground that he was
subject to removal from the United States pursuant to
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”), as amended, because he was convicted, after admission
to the United States, of an aggravated felony as described in
INA § 101(a)(43)(G) ("a theft offense . . . for which the term
of imprisonment [is] at least one year").
In his removal proceedings before the IJ, the
petitioner argued that the IJ should apply federal law for
purposes of determining deportability. Under the Federal
Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 5031, a juvenile
is defined as one who has not attained his eighteenth birthday.
The petitioner argued that because he was only seventeen, “the
offense was a delinquency and not a conviction for immigration
purposes.” The IJ disagreed and rejected the petitioner's plea
to apply federal law. The IJ noted that the proceedings took
place within the United States, as opposed to a foreign nation,
and that the petitioner had been treated as an adult in Rhode
Island courts, not as a juvenile. The IJ held that the
petitioner had been “convicted” of an aggravated felony after
admission and was deportable as charged. The IJ ordered him
removed to Cape Verde.
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The petitioner appealed the IJ's order to the BIA,
repeating his argument that because he was in federal
immigration proceedings, whether or not he has a “conviction”
for immigration purposes should be determined by federal law,
not Rhode Island state law. He argued that applying the FJDA,
as opposed to state law, would avoid disparate treatment for the
same offense depending solely on where the offense had occurred.
The BIA, in a per curiam decision, dismissed the
petitioner's appeal. The BIA applied the new definition of
“conviction” found at § 101(a)(48) of the INA, which was
introduced as part of the Illegal Immigration Reform and
Immigrant Rehabilitation Act of 1996 ("IIRIRA"). See IIRIRA,
Pub. L. No. 104-208, § 322, 110 Stat. 3009.
The BIA stated that “[i]n passing this legislation [the
IIRIRA], Congress could have, but did not, exclude juvenile
offenses . . . .” The BIA also commented on the legislative
history of the IIRIRA, noting that the definition of conviction
was deliberately broadened beyond that of the prior definition.
The BIA ultimately determined that Congress's intent
to expand the definition of conviction is clear and there is “no
need to adopt a federal standard for adjudicating removal cases
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for those aliens who have received convictions prior to their
18th birthday.” It dismissed the appeal.
On appeal to this court, the petitioner reiterates the
same arguments that were presented to both the IJ and the BIA.
He further contends that the BIA failed to articulate any
reasoned explanation for treating him differently from other
classes of juveniles and thus denied him his constitutional
right to equal protection.
II.
We bifurcate our analysis: First, we address the BIA's
construction of the statute defining "conviction" for
immigration purposes as it relates to the particular facts in
this case. Then we address the petitioner's constitutional
claim that the BIA violated his right to equal protection.
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A. Was the petitioner "convicted"?
"We review de novo an agency's construction of a
statute that it administers, subject, however, to established
principles of deference." Herrera-Inirio v. INS, 208 F.3d 299,
304 (1st Cir. 2000) (citing INS v. Aguirre-Aguirre, 526 U.S.
415, 424-25 (1999)). "If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress." Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984). "[I]f the statute is silent
or ambiguous with respect to the specific issue, the question
for the court is whether the agency's answer is based on a
permissible construction of the statute." Id. at 843. "Because
agency officials acting in the immigration context exercise
especially sensitive political functions that implicate
questions of foreign relations, deference to administrative
expertise is particularly appropriate." Herrera-Inirio, 208
F.3d at 304 (internal citation and quotation marks omitted).
The path that leads to the current definition of
"conviction" is a long and winding one. In 1988, the BIA, in
Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 (BIA 1988),
attempted to ensure uniformity by creating a three-part
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definition of "conviction."3 That effort to produce uniformity
failed and, in 1996, Congress enacted the IIRIRA, which, among
other things, added the current definition of conviction to the
INA. See INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). The
current definition of "conviction" as it relates to immigration
is 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
3 In Matter of Ozkok, the BIA held that a "conviction"
for immigration purposes consisted of the following elements:
(1) a judge or jury has found the alien guilty or
he has entered a plea of guilty or nolo contendere or
has admitted sufficient facts to warrant a finding of
guilty;
(2) the judge has ordered some form of punishment,
penalty, or restraint on the person's liberty to be
imposed . . . ; and
(3) a judgment or adjudication of guilt may be
entered if the person violates the terms of his
probation or fails to comply with the requirements of
the court's order, without availability of further
proceedings regarding the person's guilt or innocence
of the original charge.
Id.
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(ii) the judge has ordered some form
of punishment, penalty, or restraint on the
alien's liberty to be imposed.
INA § 101(a)(48)(A).
In Herrera-Inirio, we held that it was Congress's
intent to "broaden[] the scope of the definition of 'conviction'
beyond that adopted by the Board of Immigration Appeals in
Matter of Ozkok." 208 F.3d at 305 (quoting H.R. Conf. Rep. No.
104-828, at 244 (1996)). We stated that "[t]his language leaves
nothing to the imagination." Id. at 304.
We follow that holding in the present case. The
statute is clear and unambiguous. Applying the statute, we hold
that the petitioner does have a "conviction." He does not
contest that he pled guilty to the charges levied against him or
that the judge ordered punishment in the form of imprisonment.
What he does contest is the fact that he was a juvenile at the
time of the offense and therefore should not be found to have a
"conviction."
He argues that we should apply the FJDA to his case and
conclude that he does not have a "conviction" for immigration
purposes. Such a determination would allow him to remain in
this country. The petitioner argues that because he was only
seventeen, “the offense was a delinquency and not a conviction
for immigration purposes.” We disagree. The petitioner was
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adjudicated as an adult in the Rhode Island state court. The
BIA held:
By the time an alien has been served a
Notice to Appear and appears within the
jurisdiction of the Executive Office for
Immigration Review, he or she has already
been adjudicated as an adult or a juvenile
within the jurisdiction of the criminal
court; the Immigration Court need not enter
into this consideration and is free to apply
section 101(a)(48) of the Act. Whether or
not a state court adjudicates an alien's
criminal behavior in juvenile proceedings
falls outside of our jurisdiction . . . .
We agree. Neither we nor the BIA have jurisdiction to
determine how a state court should adjudicate its defendants.
Once adjudicated by the state court, as either a juvenile or an
adult, we are bound by that determination.
It is true that if a juvenile is prosecuted under
foreign laws, the BIA will apply the FJDA to determine whether
he had a juvenile delinquency or an adult "conviction" for
immigration purposes. See, e.g., Matter of De La Nues, 18 I. &
N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N.
Dec. 135 (BIA 1981). The petitioner urges us to expand that
ruling to cover juveniles prosecuted under state laws, and
invites us to adopt a federal standard for determining if a
petitioner who commits an offense prior to his eighteenth
birthday has a "conviction" for immigration purposes. The plain
language of the statute forbids us from adopting such a
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standard. If Congress had wanted the INS to follow the FJDA at
all times, it would have so stated. We hold that this
petitioner has a "conviction" as defined by INA § 101(a)(48).
B. Does this violate the petitioner's right to equal
protection?
The petitioner next argues that failure to apply the
FJDA violates his right to equal protection. He claims that
similarly situated persons--persons of the same age, who commit
the same offense--will be treated differently depending on where
they commit the offense. This is quite a stretch for the equal
protection doctrine.
There can be no doubt that aliens are entitled to equal
protection of the law. Sugarman v. Dougall, 413 U.S. 634, 641
(1973); Herrera-Inirio, 208 F.3d at 306; Almon v. Reno, 192 F.3d
28, 31 (1st Cir. 1999), cert. denied, 121 S. Ct. 83 (2000). We
apply a rational-basis review to this equal protection analysis.
See Heller v. Doe, 509 U.S. 312, 319 (1993); Almon, 192 F.3d at
31. This is a "minimal standard of review," and the distinction
"must be upheld if it is rationally related to a legitimate
governmental purpose." Almon, 192 F.3d at 31. We also note
that "the government need not actually articulate at any time
the purpose or rationale supporting its classification." Id.
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Under this minimal standard of review, we hold that
there is no violation of equal protection and it is entirely
rational for the BIA to rely on the law of the convicting state
to determine whether a juvenile has been convicted as an adult.
We have held that the definition of a "conviction" as defined in
§ 101(a)(48) "applies even if both the predicate offense and the
penalty therefor are creatures of state law." Herrera-Inirio,
208 F.3d at 306. Under the facts and circumstances of this
case, it is beyond our jurisdiction to determine whether a state
court adjudicates its criminal defendants as adults or
juveniles. Once the determination is made, we are thereby
bound.
The Full Faith and Credit Clause of the Constitution
provides:
Full Faith and Credit shall be given in each
State to the public Acts, Records, and
judicial Proceedings of every other State.
And the Congress may by general Laws
prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and
the Effect thereof.
U.S. Const. art. IV, § 1. Congress passed a statute
implementing the Full Faith and Credit Clause, see 28 U.S.C. §
1738, which states, inter alia, that
[s]uch Acts, records and judicial
proceedings . . . shall have the same full
faith and credit in every court within the
United States and its Territories and
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Possessions as they have by law or usage in
the courts of such State, Territory or
Possession from which they are taken.
Id.
The petitioner argues that the BIA must apply the FJDA
rather than the laws of the convicting state to avoid disparate
treatment of juveniles based on where they are prosecuted. We
disagree. Under our dual system of criminal justice, there are
innumerable instances where the sentence of a convicted
defendant will be lesser or greater depending on where the
defendant is tried, in one state or another or, as here, in a
federal court or a state court. The most drastic penalty of
all--the death penalty--depends on where the crime has been
committed. Disparate treatment of those accused of a crime is
an inevitable concomitant of separate federal and state
jurisdictions.
We have given greater weight to the laws of the
convicting state than to a comparable federal law. United
States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir. 1996)
("hold[ing] that a state drug offense is properly deemed a
'felony' . . . if the offense is classified as a felony under
the law of the relevant state, even if the same offense would be
punishable only as a misdemeanor under federal law").
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There is no merit in the petitioner's equal protection
claim. It was entirely rational for the BIA to rely on the law
of the convicting state to determine whether a juvenile has been
convicted as an adult.
III.
For the reasons stated above, we conclude that the BIA
correctly determined that the petitioner was "convicted" for
immigration purposes and that his right to equal protection was
not violated. Therefore, we affirm the order of the BIA, and
the petition for review is denied and dismissed.
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