Herrera-Inirio v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 99-1852

LUIS AQUILES HERRERA-INIRIO,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Peter J. Zatz-Hanley, with whom Ramon M. Gonzalez was on
brief, for petitioner.
Terri J. Scadron, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of Justice,
with whom David W. Ogden, Acting Assistant Attorney General,
Civil Division, and Lyle D. Jentzer, Trial Attorney, Office of
Immigration Litigation, were on brief, for respondent.

April 5, 2000
 SELYA, Circuit Judge. In this case, the petitioner,

Luis Aquiles Herrera-Inirio, hoists the red flag of federalism

and seeks to overturn an order calling for his deportation

entered by the Board of Immigration Appeals (the Board). The

Board's removal order rests upon its interpretation of 8 U.S.C.

§ 1101(a)(48)(A), the provision in the Immigration and

Nationality Act (the I&N Act) that defines the term "conviction"

for immigration-related purposes. The petitioner charges that

the Board misread the law, failed to give full faith and credit

to the Puerto Rico courts' construction of a Puerto Rico

domestic violence statute, overstepped the bounds set by the

Tenth Amendment, and transgressed the Due Process Clause of the

Fifth Amendment. Finding that the petitioner's arguments lack

force, we deny the petition for review.

I. BACKGROUND

The petitioner is a Dominican national who was admitted

to the United States as an immigrant in 1994. He made his home

in Puerto Rico, married an American citizen, and became a lawful

permanent resident on April 16, 1997. Approximately two months

later, his wife filed a complaint with the police, in which she

claimed that the petitioner had used physical and psychological

violence against her (e.g., striking her in the face with his

fist, biting her breast, and forcing her into a car against her

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will). The police charged the petitioner with the criminal

offense of aggravated abuse. See P.R. Laws Ann. tit. 8, § 632.

On December 4, 1997, he pled guilty to a lesser charge of simple

abuse. See id. § 631.

On January 30, 1998, the Puerto Rico Superior Court

issued a resolution which commemorated that the petitioner had

been "found guilty" on December 4 of a crime involving spousal

abuse, but suspended further proceedings and ordered the

petitioner to comply with a series of conditions for one year.

See id. § 636 (stating in pertinent part that after an accused

pleads guilty to certain specified crimes, "the court may . . .

suspend all procedures and submit the convicted person to

probation, provided he/she participates in a reeducation and

retraining program for persons who incur abusive conduct in a

relationship with another"). The resolution also stated:

If during this trial period the defendant
does not violate any of the conditions, the
Court will, at its sole discretion . . . be
able to exonerate the defendant and dismiss
the case against him. . . . The exonerated
person will have the right to, once the case
has been dismissed, have the Puerto Rico
Police Superintendent return any records of
fingerprints or photographies [sic] in their
possession, taken in relation to the
violation which gave origin to this
accusation.

A federal statute, 8 U.S.C. § 1227(a)(2)(E)(i),

provides that an alien who is convicted of a crime of domestic

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violence at any time after his entry into the United States is

subject to deportation. A companion statute, 8 U.S.C. §

1227(a)(2)(A)(i), provides that an alien who, having acquired

lawful permanent resident status, is convicted within ten years

after admission to the United States of a crime of moral

turpitude (for which a sentence of one year or longer may be

imposed) is likewise subject to deportation. On July 24, 1998,

the Immigration and Naturalization Service (the INS) invoked

these statutes and instituted removal proceedings against the

petitioner.

At his deportation hearing, the petitioner argued that

he had merely been placed in a pretrial diversion program and

thus had neither been "convicted" of the offense of spousal

abuse nor "sentenced" to one year of probation. On January 15,

1999, the immigration judge (the IJ) ruled that the petitioner

had been convicted of the crime for immigration purposes; that

the crime was potentially punishable by a prison term of one

year and involved moral turpitude; and that the petitioner had

been sentenced to probation. Consequently, she ordered the

petitioner removed from the United States.

The petitioner appealed this order to the Board. See

8 C.F.R. §§ 3.1(b)(3), 240.15 (1999). Shortly thereafter, the

one-year probationary period expired. Accordingly, on February

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12, 1999, the Superior Court dismissed the indictment in

accordance with its earlier resolution and directed the police

superintendent to purge the records. The petitioner then asked

the Board to terminate the removal proceedings or, in the

alternative, to remand the case to the IJ for action "according

with the dismissal of the criminal charges." The Board

demurred, instead dismissing the petitioner's appeal. In its

decision, the Board held that the petitioner had been convicted

for immigration purposes pursuant to 8 U.S.C. § 1101(a)(48)(A)

because he had entered a guilty plea and a judge had decreed a

form of punishment (the one-year probationary period). The

Board also agreed with the IJ's determination that the

petitioner had been convicted of a crime involving both spousal

abuse and moral turpitude.

This timely petition for judicial review followed. In

it, the petitioner challenges the finding that what transpired

amounted to a "conviction" for immigration purposes (and,

concomitantly, the constitutionality of section 1101(a)(48)(A)).

He does not seek review of the Board's determination that the

subject offense was a crime that involved both domestic violence

and moral turpitude, and we therefore eschew any further

reference to that aspect of the matter.

II. ANALYSIS

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 We bifurcate our analysis, first considering the

propriety of the Board's construction of section 1101(a)(48)(A),

and then addressing the petitioner's constitutional challenges.

A. Was Petitioner "Convicted"?

We review de novo an agency's construction of a statute

that it administers, subject, however, to established principles

of deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999); Strickland v. Commissioner, Me. Dep't of Human Servs.,

96 F.3d 542, 545 (1st Cir. 1996). "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 Resources

Defense Council, 467 U.S. 837, 842-43 (1984). If, however, "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," INS v. Abudu, 485

U.S. 94, 110 (1988), deference to administrative expertise is

particularly appropriate.

The statute sub judice provides that:

The term "conviction" means, with respect to
an alien, a formal judgment of guilt of the

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 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). This language leaves nothing to the

imagination. The text unambiguously encompasses within the

definition of "conviction" situations in which adjudications of

guilt have been withheld, as long as the defendant's guilt has

been established by a trial, plea, or admission, and a judicial

officer orders some form of punishment, penalty, or restraint on

the defendant's liberty.

The petitioner does not contest — nor could he — that

he pled guilty or that the conditions imposed upon him during

the one-year probationary period constituted a form of

punishment, penalty, or restraint. Instead, he posits that his

particular situation eludes the statute's sweep because the

local court eventually issued a formal judgment of exoneration

that wiped the slate clean.1 This means, he says, that there was

1
For purposes of this case, we treat Puerto Rico as the
functional equivalent of a state, according the same effect to
its judicial decrees as we would to the orders of a state court
and according the same effect to its legislative enactments as
we would to state statutes. See 28 U.S.C. § 1738 (extending
full faith and credit doctrine to Puerto Rico); 48 U.S.C. § 734
(providing that, unless otherwise specified, federal statutes

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neither a "withheld adjudication of guilt" nor a "formal

judgment of guilt" in his case.

This construct is unsound. Passing the fact that at

the time of the IJ's determination the Puerto Rico Superior

Court had not yet dismissed the indictment (and, thus, an

adjudication of the petitioner's guilt was indeed "withheld"),

no provision in the I&N Act gives controlling effect to state

law or requires the INS to do an about-face if a state, pursuant

to a diversionary disposition scheme, retroactively erases a

conviction. To the exact contrary, state rehabilitative

programs that have the effect of vacating a conviction other

than on the merits or on a basis tied to the violation of a

statutory or constitutional right in the underlying criminal

case have no bearing in determining whether an alien is to be

considered "convicted" under section 1101(a)(48)(A). See

United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999); In re

Roldan-Santoyo, Int. Dec. 3377, at 19 (BIA 1999); see also

Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119 (1983);

United States v. Cuevas, 75 F.3d 778, 782 (1st Cir. 1996).

If more were needed — and we do not think it is — the

legislative history makes it crystal clear that the definition

applicable to states apply to Puerto Rico); see also Cruz v.
Melecio, 204 F.3d 14, __ (1st Cir. 2000) [slip op. at 5-6].

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of "conviction" limned in section 1101(a)(48)(A) applies to the

petitioner's situation. Frustrated by the crazy quilt of

anomalous results that flowed from widely disparate state

rehabilitative and diversionary arrangements, the Board

attempted over a decade ago to ensure uniformity by adopting a

multi-part definition of "conviction." See In re Ozkok, 19 I.

& N. Dec. 546, 551-52 (BIA 1988). This paradigm obligated the

INS to show that the alien had entered a guilty plea (or

otherwise been found guilty); that the judge had ordered some

form of punishment, penalty, or restraint on the alien's

liberty; and that, if not entered contemporaneously with the

order for punishment, a judgment or adjudication of guilt could

be entered (without the need for any further proceedings

regarding the alien's guilt or innocence on the original charge)

if the alien violated the terms or conditions of the court's

order. See id.

This effort failed to produce the desired uniformity

and Congress stepped in to fill the void. It enacted the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546,

which, among other things, added section 1101(a)(48) (and its

uniform definition of "conviction") to the I&N Act. The

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Conference Committee Report that accompanied the IIRIRA dwelt at

length on Congress's intent in enacting section 1101(a)(48)(A):

This section deliberately broadens the scope
of the definition of "conviction" beyond
that adopted by the Board of Immigration
Appeals in Matter of Ozkok . . . . As the
Board noted in Ozkok, there exist[s] 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 normally attendant upon a
conviction. Ozkok, while making it more
difficult for alien criminals to escape such
consequences, does not go far enough to
address situations where a judgment of guilt
or imposition of sentence is suspended,
conditioned upon the alien's future good
behavior. For example, the third prong of
Ozkok requires that a judgment or
adjudication of guilt may be entered if the
alien violates a term or condition of
probation, without the need for any further
proceedings regarding guilt or innocence on
the original charge. In some States,
adjudication may be "deferred" upon a
finding or confession of guilt, and a final
judgment of guilt may not be imposed if the
alien violates probation until there is an
additional proceeding regarding the alien's
guilt or innocence. In such cases, the
third prong of the Ozkok definition prevents
the original finding or confession of guilt
to be considered a "conviction" for
deportation purposes. This new provision,
by removing the third prong of Ozkok,
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.

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H.R. Conf. Rep. No. 104-828, at 224 (1996), quoted in Moosa v.

INS, 171 F.3d 994, 1002 (5th Cir. 1999) (alterations omitted).

The 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. See

Moosa, 171 F.3d at 1009 (observing that Congress deliberately

included deferred adjudications within the definition of

"conviction" for purposes of section 1101(a)(48)(A)).

To say more on this topic would be supererogatory. The

nature of the petitioner's offense, his guilty plea, and the

Superior Court's imposition of a one-year term of probation

combine to bring his case squarely within the ambit of the

statutory definition of "conviction" now contained in the I&N

Act, notwithstanding the Superior Court's subsequent dismissal

of the indictment. See id. at 1010; In re Punu, Int. Dec. 3364

(BIA 1998). Consequently, the Board did not misconstrue the Act

when it concluded that the petitioner had been "convicted" for

immigration purposes.

B. Is Section 1101(a)(48)(A) Constitutional?

An alien who has become a lawful permanent resident

enjoys the full protection of the United States Constitution.

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See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953);

Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992); see also

Landon v. Plasencia, 459 U.S. 21, 32 (1982) (explaining that

"once an alien gains admission to our country and begins to

develop the ties that go with permanent residence, his

constitutional status changes accordingly"). Taking due

advantage of this protection, the petitioner launches a volley

of challenges to the constitutionality of section

1101(a)(48)(A). We examine them seriatim.

1. Full Faith and Credit. In enacting section

1101(a)(48)(A), Congress defined the term "conviction" for

purposes of federal immigration law. That definition applies

even if both the predicate offense and the penalty therefor are

creatures of state law. See White v. INS, 17 F.3d 475, 479 (1st

Cir. 1994). The petitioner claims that this hybridization risks

distorting the meaning of local law. He sees this case as a

paradigmatic example of a situation in which that risk has come

home to roost, frustrating the purpose of Puerto Rico's chosen

scheme for diversionary dispositions and denying Puerto Rico

(and the petitioner) the benefit of full faith and credit. We

do not agree.

Congress long ago passed a statute implementing the

Full Faith and Credit Clause, U.S. Const. art. IV, § 1. See 28

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U.S.C. § 1738 (providing, inter alia, that the "Acts, records

and judicial proceedings" of each of the states, territories,

and possessions "shall have the same full faith and credit in

every court within the United States and its Territories and

Possessions as they have by law or usage in the courts of [the

originating] State, Territory or Possession"). Under this

regime, "a federal court must give to a state-court judgment the

same preclusive effect as would be given that judgment under the

law of the State in which the judgment was rendered." Migra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

The "[a]cts, records and judicial proceedings" of Puerto Rico's

courts fall within this prescription.

Neither the Full Faith and Credit Clause nor the

statutory overlay

purports to prevent federal legislative
authorities from writing federal statutes
that differ from state statutes or from
attaching, to words in a federal statute, a
meaning that differs from the meaning
attached to the same word when used in a
statute enacted by a state. A federal Union
in which this were not so — a Union in which
states possessed the constitutional power to
control federal courts' interpretation of
federal statutes — would not resemble our
post-Civil War United States.

Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) (Breyer, J.); cf.

Cuevas, 75 F.3d at 782 (noting that the immigration laws contain

no indication that they are to be interpreted in accordance with

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state law). On the basis of this reasoning — which we deem

sound — section 1101(a)(48)(A) does not infract applicable

principles of full faith and credit. See Yanez-Popp v. INS, 998

F.2d 231, 237 (4th Cir. 1993).

2. The Tenth Amendment. The petitioner contends that

Congress, in enacting section 1101(a)(48)(A), offended the Tenth

Amendment because it disregarded Puerto Rico's public policy

anent the handling of domestic violence cases. This contention

is devoid of merit.

The Tenth Amendment provides that "[t]he powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people." U.S. Const. amend. X. This

language "confirms that the power of the Federal Government is

subject to limits that may, in a given instance, reserve power

to the States." New York v. United States, 505 U.S. 144, 157

(1992). Thus, for example, Congress may not command states to

administer federal regulatory programs, conscript state officers

directly, or otherwise treat state governments as federal

handmaidens. See New York v. United States, 179 F.3d 29, 33-34

(2d Cir. 1999), cert. denied, 120 S. Ct. 932 (2000).

This limitation on federal authority is inapposite

here. As the Supreme Court declared almost a half-century ago,

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the proposition "that the formulation of . . . policies

[pertaining to the entry of aliens and their right to remain

here] is entrusted exclusively to Congress has become about as

firmly imbedded in the legislative and judicial tissues of our

body politic as any aspect of our government." Galvan v. Press,

347 U.S. 522, 531 (1954). Since then, the Court repeatedly has

reiterated that Congress's legislative power in enacting

immigration-related laws is at least as pervasive and

encompassing as in any conceivable field. See, e.g., Reno v.

Flores, 507 U.S. 292, 305 (1993); Fiallo v. Bell, 430 U.S. 787,

792 (1977); see also Amanullah v. Nelson, 811 F.2d 1, 4 (1st

Cir. 1987) (collecting cases). In short, immigration is

uniquely a matter of federal, not local, concern. See U.S.

Const. art. I, § 9, cl. 1.

This gets the grease from the goose. Because Congress

possesses plenary authority over immigration-related matters, it

may freely displace or preempt state laws in respect to such

matters. See New York, 179 F.3d at 34-35; Lopez v. INS, 758

F.2d 1390, 1392 (10th Cir. 1985). After all, in areas in which

plenary federal power exists, "the Supremacy Clause permits no

other result," notwithstanding that Congress may enact laws that

"curtail or prohibit the States' prerogatives to make

legislative choices respecting subjects the States may consider

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important." Hodel v. Virginia Surface Mining & Reclam. Ass'n,

452 U.S. 264, 290 (1981). So it is here.

3. Substantive Due Process. We turn now to the final

item in the petitioner's asseverational array: his claim that

both section 1101(a)(48)(A) and the specific action taken

against him violate his right to substantive due process. In

connection with this claim, he says that section 1101(a)(48)(A)

unconstitutionally forecloses the application and enforcement of

a valid and final state court judgment, and that the INS's

removal order, in light of the Superior Court's dismissal of the

indictment, works a comparable deprivation.

a. The Legislation

Because Congress has plenary power to make policies and

rules concerning the exclusion of aliens, see U.S. Const. art.

I, § 8, cl. 4; see also Plyler v. Doe, 457 U.S. 202, 225 (1992),

the immigration process is, in the last analysis, frankly

political in character. The courts' authority to scrutinize

legislation in this field is correspondingly narrow. See

Fiallo, 430 U.S. at 792; Hampton v. Mow Sun Wong, 426 U.S. 88,

101 n.21 (1976). As a result, the principal indicium of whether

immigration legislation offends substantive due process is

whether the law is based upon a "facially legitimate and bona

fide reason." Fiallo, 430 U.S. at 794-95; accord Kleindienst v.

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Mandel, 408 U.S. 753, 770 (1972). If so, "courts will neither

look behind the exercise of discretion, nor test it by balancing

its justification against the constitutional interest asserted

by those challenging the statute." Campos, 961 F.2d at 316.

Viewed against this jurisprudential backdrop, section

1101(a)(48)(A) easily passes constitutional muster. As

previously discussed, see supra Part II(A), the statute grew out

of a perceived need for a nationally uniform definition of the

term "conviction" for immigration purposes. Indeed, Congress

enacted section 1101(a)(48)(A) for the express purpose of

counteracting (and, thus, correcting) disparities caused by

varying state rehabilitative procedures. See Moosa, 171 F.3d at

1001-02 (synthesizing legislative history). By any standard,

this is a plausible basis for federal legislative intervention

and, thus, a "facially legitimate and bona fide reason" for

congressional action.

As a fallback, the petitioner asserts that section

1101(a)(48)(A) fails the due process test because there is a

fundamental "right" to have a state law definition of

"conviction" applied in removal proceedings. This is wishful

thinking. There is simply no purchase in the Supreme Court's

precedents for elevating so narrowly focused a "right" to the

status of one of "those fundamental rights and liberties which

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are, objectively, deeply rooted in this Nation's history and

tradition and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they were

sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21

(1997) (citations and internal quotation marks omitted).

Indeed, we agree with the Fourth Circuit that when, as now,

"narrow compass and special circumstances" attend a claimed

right, the odds are very great that the right is not

fundamental. Hawkins v. Freeman, 195 F.3d 732, 747 (4th Cir.

1999) (en banc). Here, moreover, two other factors — the

Court's announced reluctance to expand the boundaries of

substantive due process, see Glucksberg, 521 U.S. at 720; Vega-

Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 183 (1st Cir.

1997), and the plenary power that Congress enjoys over the field

of immigration — make the proposition unarguable. We conclude,

therefore, that the liberty interest asserted by the petitioner

does not implicate a fundamental right.

That determination undercuts the petitioner's argument.

Because the right asserted is not a fundamental one, section

1101(a)(48)(A) need only be rationally related to a legitimate

governmental interest in order to survive judicial

perscrutation. See Flores, 507 U.S. at 306. This is pretty

much the same as saying that there must have been a "facially

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legitimate and bona fide reason" underlying the enactment of the

statute. See United States v. Ahumada-Aguilar, 189 F.3d 1121,

1125 (9th Cir. 1999); Turkhan v. Perryman, 188 F.3d 814, 828-29

(7th Cir. 1999); Azizi v. Thornburgh, 908 F.2d 1130, 1133 n.2

(2d Cir. 1990); see also Collin O'Connor Udell, Miller v.

Albright: Plenary Power, Equal Protection, and the Rights of an

Alien Love Child, 12 Geo. Immigr. L.J. 621, 628 & n.67, 652

(1998) (noting that "the [facially legitimate bona fide reason]

test has been cast as the equivalent of rational basis scrutiny

by some courts"); Stephen H. Legomsky, Ten More Years of Plenary

Power, 22 Hastings Const. L.Q. 925, 931 (1995) (similar). As

discussed above, a sufficient reason — the government's need for

a nationally uniform definition of the term "conviction" for

immigration purposes — exists here. Section 1101(a)(48)(A)

rationally advances that goal.

b. The Executive Action

The second branch of the petitioner's substantive due

process thesis is no more persuasive. In it, he assails the

actions taken by the INS in this case. But those actions were

precisely aligned with the purpose of the statute and well

within its fair intendment. Executive actions that do no more

than comport with valid statutory commands simply are not the

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stuff from which substantive due process violations can be

fashioned. See Kleindienst, 408 U.S. at 770.

Of course, the same result would obtain even if,

contrary to precedent, we yielded to the petitioner's

importuning and analyzed the situation under the type of

substantive due process analysis that characteristically

attaches to executive action outside the immigration context.

The removal order in this case, while strong medicine, in no way

sinks to the level of "outrageous, uncivilized, and intolerable"

conduct, Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir.

1999), nor does it "shock the conscience," Evans v. Avery, 100

F.3d 1033, 1038 (1st Cir. 1996).

III. CONCLUSION

We need go no further. For the reasons stated, we

conclude that the Board correctly determined that the petitioner

was convicted for immigration purposes, and that section

1101(a)(48)(a) — which compelled that determination — does not

violate the Constitution. Consequently, the removal order was

lawful.

The order of the Board of Immigration Appeals is

affirmed, and the petition for review is denied and dismissed.

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