PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3733
_____________
OMAR ALEJANDRO FRIAS-CAMILO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A056-557-093)
Immigration Judge: Hon. David Crosland
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 13, 2016
Before: AMBRO, JORDAN, and GREENBERG, Circuit
Judges.
(Opinion Filed: June 23, 2016)
_______________
Raymond G. Lahoud
Baurkot & Baurkot
227 South 7th St.
Easton, PA 18042
Counsel for Petitioner
Aimee J. Carmichael
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Omar Alejandro Frias-Camilo, a native and citizen of
the Dominican Republic, petitions for review of a Board of
Immigration Appeals (“BIA”) decision finding him
removable from the United States under 8 U.S.C.
§ 1227(a)(2)(B)(i) due to a Pennsylvania conviction for a
controlled substance offense.1 We will deny the petition.
1
The BIA further concluded that Frias-Camilo was
ineligible for cancellation of removal because he had not
demonstrated his physical presence in the United States for a
period of seven years, as required by 8 U.S.C. § 1229b(a)(2).
It also adopted and affirmed the Immigration Judge’s decision
denying Frias-Camilo’s claims of asylum, withholding of
2
I. BACKGROUND
Frias-Camilo first entered the United States as a lawful
permanent resident in 2006. On July 23, 2013, he entered a
plea of guilty in the Court of Common Pleas for Lehigh
County, Pennsylvania to one count of conspiracy to possess a
controlled substance, cocaine, in violation of 18 PA. CONS.
STAT. § 903 and 35 PA. STAT. ANN. § 780-113(a)(16) (West).
Frias-Camilo was originally sentenced to a twelve-month
period of probation, but, sixteen months later, the court
amended his sentence and imposed a sentence of “guilty
without further penalty,” pursuant to 42 PA. CONS. STAT.
§ 9723.2 That later order vacated several earlier-imposed
punitive aspects of Frias-Camilo’s sentence, so he received no
jail sentence, no term of probation, no community service,
and owed no fines or fees. Nonetheless, the order indicated
that the court “finds the defendant guilty.” (A.R. at 466.)
The Department of Homeland Security issued Frias-
Camilo a Notice to Appear, charging him with removability
removal, and protection under the United Nations Convention
Against Torture. Frias-Camilo did not address any of these
issues in his opening brief in this appeal, nor has he filed a
reply brief. Accordingly, any argument as to those portions
of the BIA’s decision is waived. Khan v. Att’y Gen., 691 F.3d
488, 495 n.4 (3d Cir. 2012).
2
That statutory section, entitled “[d]etermination of
guilt without further penalty,” provides: “If in the light of all
the circumstances, probation would be appropriate under
section 9722 (relating to order of probation), but it appears
that probation is unnecessary, the court may impose a
sentence of guilty without further penalty.”
3
pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), which makes
deportable “[a]ny alien who at any time after admission has
been convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United States, or
a foreign country relating to a controlled substance … .”3
Frias-Camilo, through counsel, admitted before an
Immigration Judge (“IJ”) the factual allegations in the Notice
to Appear, but he filed a motion to terminate removal,
arguing that the sentence of “guilty without further penalty”
did not qualify as a “conviction” due to the absence of any
restraint on his liberty. The IJ denied his motion, and a
second IJ denied his motion to reconsider. After a hearing, a
third IJ held Frias-Camilo to be removable, based on clear
and convincing evidence. The BIA dismissed his appeal, and
Frias-Camilo timely filed the pending petition for review.
3
The Notice to Appear was issued on August 9, 2013.
At that time, Frias-Camilo’s original sentence was in effect,
as it had not yet been changed to “guilty without further
penalty,” which did not occur until November 18, 2014. The
timing of that change in sentence has no bearing on our
analysis here, however, as we conclude that Frias-Camilo’s
changed sentence nonetheless resulted in a formal judgment
of guilt.
4
II. DISCUSSION4
Frias-Camilo’s sole argument to this Court is the same
as he raised below – that his Pennsylvania cocaine charge did
not result in a “conviction” for a controlled substance offense
because he received no actual punishment or restraint on his
liberty. We must reject that argument.
The Immigration and Nationality Act (“INA”) defines
the term “conviction” as follows:
The term ‘conviction’ means, with respect to an
alien, a formal judgment of guilt of the alien
4
The BIA had jurisdiction under 8 C.F.R.
1003.1(b)(3). We exercise jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1). That jurisdictional statute limits the scope of
our review to constitutional claims and questions of law. 8
U.S.C. §§ 1252(a)(2)(B)-(D). We may properly consider
whether, as a matter of law, the disposition of Frias-Camilo’s
Pennsylvania criminal charge constitutes a “conviction” for
immigration purposes. Acosta v. Ashcroft, 341 F.3d 218, 220
(3d Cir. 2003).
In considering that question, we “review[] the
agency’s conclusions of law de novo, ‘subject to established
principles of deference.’” Mendez-Reyes v. Att’y Gen., 428
F.3d 187, 191 (3d Cir. 2005) (quoting Wang v. Ashcroft, 368
F.3d 347, 349 (3d Cir. 2004)). Here, because the BIA’s
decision was a single-member, non-precedential opinion, “we
defer to its legal conclusions only insofar as they have the
power to persuade.” Singh v. Att’y Gen., 807 F.3d 547, 550
(3d Cir. 2015).
5
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); see Pinho v. Gonzalez, 432 F.3d
193, 204-05 (3d Cir. 2005) (tracing the history of the INA’s
definition of “conviction”). We have previously emphasized
the disjunctive nature of that definition – a conviction may
consist of either a formal judgment of guilt or a withheld
adjudication with some restraint on the alien’s liberty. Perez
v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002). Added to the
INA by Congress in 1996, that second definition was meant
to broaden the list of included convictions so that it covered
cases in which an adjudication of guilt was deferred.5 Thus,
5
As the Conference Report on the amendments
explained:
[T]here exist in the various States a myriad of
provisions for ameliorating the effects of a
conviction. As a result, aliens who have clearly
been guilty of criminal behavior and whom
Congress intended to be considered “convicted”
have escaped the immigration consequences
6
under the INA, the presence of a restraint on liberty is only
necessary when an adjudication of guilt has been withheld,
but not when there is a formal judgment of guilt. Since Frias-
Camilo’s Pennsylvania charge resulted in no restraint on his
liberty, he may only be removable if it led to a formal
judgment of guilt.
A formal judgment of guilt, for immigration purposes,
is defined by reference to the definition of a “judgment of
conviction” set out at Federal Rule of Criminal Procedure
32(k)(1). Perez, 294 F.3d at 562 (incorporating definition
then found at subsection (d)(1) of Rule 32). Under that Rule,
“[a] judgment of conviction … must set forth the plea, the
jury verdict or the court’s findings, the adjudication, and the
sentence. If the defendant is found not guilty or is otherwise
entitled to be discharged, the court must so order. The judge
must sign the judgment, and the clerk must enter it.” Fed. R.
Crim. P. 32(k)(1).
Here, the record establishes that Frias-Camilo’s
Pennsylvania controlled substance charge resulted in a formal
judgment of guilt. The charging document, a criminal
normally attendant upon a conviction. … This
new provision … clarifies Congressional intent
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.
H.R. CONF. REP. NO. 104-828 at 224. We have referred to
that as the “‘withheld judgment’ loophole.” Pinho, 432 F.3d
at 206.
7
information, includes a handwritten notation that Frias-
Camilo pleaded guilty to the cocaine conspiracy charge. The
amended sentencing order, signed by the sentencing judge,
states that the court found him guilty and specifies the statute
of conviction. The record also includes the original
sentencing order, as well as transcripts of the original plea
colloquy and the hearing to amend the sentencing order.
During the original plea hearing, Frias-Camilo explicitly pled
guilty to the charge of conspiracy to possess cocaine and
stated on the record that he admitted his guilt of that offense.6
The original sentencing order confirms the sentence imposed
and, by implication, the guilty plea that preceded it. During
the hearing to amend the sentencing order, Frias-Camilo’s
counsel indicated that Frias-Camilo was aware of all of his
rights at the original plea and sentencing, that he understood
what was happening, and thus “no colloquy [was] necessary.”
(A.R. at 520.) At the conclusion of that hearing, the court
entered the following order: “Now, this November 18th,
2014, the Court, pursuant to 42 Pa.C.S. 9723, finds the
defendant guilty without further penalty.” (A.R. at 522.) The
amended sentencing order reflects that finding. A formal
judgment of guilt makes the imposition or omission of any
punitive sanction irrelevant under the INA. The judgment
itself establishes Frias-Camilo’s “conviction” for purposes of
8 U.S.C. § 1101(a)(48)(A), and we need not consider whether
any form of punishment was imposed.7
6
There was also a discussion on the record that the
plea could potentially impact Frias-Camilo’s immigration
status. He indicated that he understood that the plea could
affect his permanent resident status.
7
Given the clarity of that documentation, we reject
Frias-Camilo’s contention that the judgment of guilt did not
8
Against the weight of that evidence, Frias-Camilo
insists that the vacatur of punitive aspects of his sentence
somehow means that no “sentence” was ever imposed upon
him. As earlier noted, a “formal judgment of guilt” is
comprised of a plea, finding, adjudication, and sentence.
Perez, 294 F.3d at 562. Focusing on the meaning of a
“sentence,” Frias-Camilo argues that our previous
incorporation of the definition of a “judgment of conviction”
from the Federal Rules of Criminal Procedure means that “the
federal definition of ‘sentence’ is controlling as to whether a
sentence has been issued in a particular case.” (Opening Br.
at 16 (original emphasis).) Because the federal sentencing
statute does not contemplate a finding of guilt with no further
penalty, he argues, no “sentence” was ever imposed upon him
as that term is defined under federal law. See 18 U.S.C.
§ 3551(b) (listing, as possible federal sentencing options,
terms of probation or imprisonment, a fine, forfeiture of
property, and restitution). To Frias-Camilo, if none of the
sentencing options listed in § 3551(b) are ordered, no
“sentence” is imposed, and thus no “formal judgment of
guilt” can exist.
That argument does not withstand scrutiny. Frias-
Camilo cites no authority for the notion that a state sentence
must include one of the punitive options listed in § 3551(b)
before it can be treated as a “sentence” under the INA. Nor
could he, as his argument runs headlong into the plain
establish his plea or the adjudication of his charges. Both
requirements were amply met by the documents submitted in
support of Frias-Camilo’s Pennsylvania conviction – Frias-
Camilo was adjudicated guilty, after a guilty plea, on the
charge of conspiracy to possess cocaine.
9
language of that statute. In essence, Frias-Camilo contends
that no “judgment of guilt” can exist without some punitive
sanction. Congress, however, explicitly excluded a
punishment requirement from the first definition of a
“conviction” while including it in the second definition. See
Acosta v. Ashcroft, 341 F.3d 218, 222 n.6 (3d Cir. 2003)
(“Congress intended that Section [1]101(a)(48)(A) be
afforded its plain meaning.”). The statutory language, in fact,
leaves little to the imagination. The INA’s first definition of
a “conviction” provides that a “formal judgment of guilt,”
standing alone, establishes the existence of a conviction.8 See
Viveiros v. Holder, 692 F.3d 1, 3 (1st Cir. 2012) (rejecting
“out-of-hand the petitioner’s suggestion that there was no
‘formal judgment of guilt’ because he was never ultimately
8
The primary decision that Frias-Camilo cites in
support of his argument is inapposite. In Matter of
Marroquin-Garcia, 23 I. & N. Dec. 705 (A.G. 2005), the
Attorney General considered whether the phrase “formal
judgment of guilt” should include convictions that are later
vacated. In concluding that vacated convictions should
nonetheless qualify as “convictions” under the INA, the
Attorney General cited the second definition of a conviction
present in § 1101(a)(48)(A) for situations in which an
adjudication is withheld but a restraint on liberty is still
imposed. That definition “ensures that a defendant who has
been found guilty of unlawful conduct, and has been punished
for that conduct, will not avoid deportation by utilizing a state
court procedure that spares the defendant from technically
being adjudged ‘convicted.’” Id. at 715. That case did not
eliminate the first statutory definition of a conviction; it
merely relied upon the second definition as support for its
conclusion regarding vacated convictions.
10
punished for his shoplifting crime”). Nothing further is
required.
A “sentence” is merely “[t]he judgment that a court
formally pronounces after finding a criminal defendant guilty;
the punishment imposed on a criminal wrongdoer.” BLACK’S
LAW DICTIONARY (10th ed. 2014). Here, the punishment
finally imposed on Frias-Camilo was the judgment of
conviction itself. Although Pennsylvania’s “guilty without
further penalty” formulation may not have a federal
counterpart, it is included among the sentencing options
enumerated in Pennsylvania’s statute governing criminal
sentencing. See 42 PA. CONS. STAT. § 9721(a)(2).9 That
sentencing option recognizes that
[i]n some instances, the court may decide that
the needs of justice are fulfilled by a
determination of guilt alone, without necessity
for further penalty. The shame and trauma of
public conviction may be punishment enough
and there may be no need of any plan for
“reformation” or control. In such cases, the
courts should be free to make such a judgment
without requiring useless probation.
Commonwealth v. Rubright, 414 A.2d 106, 109 (Pa. 1980).
Beyond such shame and trauma, a finding of guilt without
further penalty can also have significant collateral
9
Given the explicit reference to that option in
Pennsylvania’s sentencing statute, we reject Frias-Camilo’s
additional contention that “guilty without further penalty” is
not intended as a “sentence” under Pennsylvania law.
11
consequences, as the very existence of this removal
proceeding makes clear. We do not hesitate to conclude that
a sentence of “guilty without further penalty” is a “sentence”
for purposes of the INA.
III. CONCLUSION
The record from Frias-Camilo’s Pennsylvania
controlled substance case establishes his plea, the court’s
findings, the sentence, and the adjudication of that charge. As
such, a “formal judgment of guilt” was entered against him,
establishing his “conviction” as defined by 8 U.S.C.
§ 1101(a)(48)(A). Perez, 294 F.3d at 562. That conviction is
for a controlled substance offense – conspiracy to possess
cocaine – that renders Frias-Camilo removable from the
United States under 8 U.S.C. § 1227(a)(2)(B)(i).10 We will
therefore deny his petition for review.
10
Frias-Camilo does not dispute that the cocaine
charge qualified as a controlled substance offense as defined
in 8 U.S.C. § 1227(a)(2)(B)(i).
12