BIA Holds That A Respondent Who Is Subject To A Deferred Adjudication That Satisfies The Elements Of §§ 101(a)(48)(A)(i) And (ii) Has Been “Convicted By A Final Judgement” Within The Meaning Of The Particularly Serious Crime Bar Under INA § 241(b)(3)(B)(ii).
On June 14, 2022, the Board of Immigration Appeals (BIA or Board) dismissed, for the 2nd time, an appeal in a case where the Immigration Judge (IJ) had denied Respondent’s applications for withholding of removal under INA §241(b)(3)(A) and CAT relief; the matter had gone up to the Eleventh Circuit Court of Appeals, where the Government’s unopposed motion to remand had caused the BIA to further consider the applicant’s eligibility for withholding but, after briefing by the parties, the end result was the same.
Respondent, who was in the U.S. without lawful status, had pled nolo contendere to felony battery per Florida Statutes §784.041, received 5 years of probation and had the adjudication deferred. Because of his subsequent criminal conduct, this order was later modified to “include anger management evaluations and a directive to follow prescribed recommendations.” Upon being placed in removal proceedings, Respondent conceded removability and applied for withholding and CAT protection. The IJ pretermitted the withholding application after deciding that Florida’s deferred adjudication of felony battery constituted a conviction for a particularly serious crime per INA §241(b)(3)(B)(ii) and denied Respondent’s CAT request, holding that he did not face a clear probability of future torture if removed. The Board dismissed the appeal from this decision.
In turn, Respondent petitioned for review with the Eleventh Circuit, which granted the Government’s above–referenced motion to vacate its decision and remand to the BIA to further consider whether the applicant was convicted “by a final judgment” of a particularly serious crime per §241 (b)(3)(B)(ii), based on his deferred adjudication under Florida law. The Government also requested further consideration of whether felony battery in Florida is a particularly serious crime in light of circuit and state case law by its elements or under the facts and circumstances of Respondent’s conduct.
In beginning its analysis, the Board noted that one is ineligible for withholding if, having been convicted of a final judgment of a particularly serious crime, he or she is a danger to the community of the United States. The opinion next stated that the INA also holds one ineligible for asylum who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States. As both provisions contain the identical phrase “convicted by a final judgment”, the decision found that “Congress intended both phrases to have a consistent meaning.”
Further, concluded the BIA, Congress had also added §101(a)(48)(A) to amend the then–existing definition of “conviction” for immigration purposes by eliminating the “rule that exempted criminal aliens with a deferred adjudication from the immigration consequences of a conviction if they retained a right to pursue further proceedings to contest their guilt at an unknown time in the future.” Therefore, Congress clearly intended for a Respondent subject to a deferred adjudication to be regarded as “convicted” under §101(a)(48)(A), “based on an initial finding or admission of guilt coupled with the imposition of some punishment, even in a state where further proceedings relating to the alien’s actual guilt or innocence may be required upon his violation of probation in order for him to be considered convicted under the state law.”
As to the term “final judgment”, which is not defined in the Act, the Board concluded that the better interpretation is that a conviction is “by final judgment” under §241(b)(3)(B)(ii) once a sentence is imposed, even if it is later withheld, deferred or suspended. Additionally, a judge’s order under §101(a)(48)(A)(ii) terminates the litigation between the parties on the merits and leaves nothing to be done but to enforce by execution what has been determined. Resultantly, once a deferred adjudication satisfies the elements of §101(a)(48)(A)(i) and (ii), it will necessarily qualify as a conviction “by a final judgment” within the meaning of §241(b)(3)(B)(ii).
The BIA therefore held that a respondent who is subject to a deferred adjudication that satisfies the elements of §§ 101(a)(48)(A)(i) and (ii) has been “convicted by a final judgment” within the meaning of the particularly serious crime bar of §241(b)(3)(B)(ii). Although the instant case involved an application for withholding in light of the “canon on consistent usage” the opinion’s reading of “convicted by a final judgment” applied with equal force to the identical phrase in INA § 208(b)(2)(A)(ii), which applies in the asylum context.
Respondent’s plea of nolo contendere also satisfied the elements of §101(a)(48)(A)(i) and his order of probation was a punishment or restraint within the meaning of §101(a)(48)(A)(ii); the opinion also found probation to be a form of “sentence” under Federal law and thus a “final judgment”. Consequently, held by the Board, Respondent’s Florida deferred adjudication qualified as a “conviction by a final judgment” within the meaning of §241(b)(3)(B)(ii).
In clarifying on remand its prior conclusion that Respondent’s Florida felony battery conviction was for a particularly serious crime, the BIA – noting that this offense (unlike aggravated battery) “does not require a defendant to intentionally or knowingly cause serious injury to his victim” – held that Respondent had committed a particularly serious crime “based on the facts and circumstances underlying his crime.” Thus, the IJ had not clearly erred when she declined to accept his assertion that he was acting in self-defense, as the record supports the IJ’s conclusion that Respondent was the aggressor and “engaged in violent and dangerous criminal behavior against his victim.” Additionally, Respondent received 5 years of probation, paid restitution, and was ordered not to contact the victim; such facts and circumstances further supported the IJ’s conclusion. The decision therefore found that the IJ “gave reasoned consideration” to the evidence of Respondent’s offense and correctly concluded it was a “particularly serious crime” barring him from withholding under INA §241 (b)(3)(B)(ii). The appeal was therefore dismissed.
In a concurring opinion, Appellate Immigration Judge Greer looked at the meanings of the terms “conviction” and “final judgment” and found that her reading conformed to the historical understanding of these terms under the INA, which was “consistent with the result reached by the majority.” AIJ Greer noted that Matter of Punu, 22 I&N Dec. 224 (BIA 1998) had held that the plain language of § 101(a)(48)(A) encompassed deferred adjudications that include a finding of guilt, plea of nolo contendere, or an admission of facts sufficient to warrant a finding of guilt under §101(a)(48)(A)(i). As a result, the BIA no longer required deferred adjudication convictions to be final.
In applying this decision to Respondent, the concurrence found that a conviction is “by a final judgment” per § 241(b)(3)(B)(ii) once a sentence is imposed, even if the sentence is later suspended. Because Respondent pleaded nolo and received a sentence of probation, he was convicted “by a fine judgment” within the meaning of §241(b)(3)(B)(ii). AIJ Greer also agreed that Respondent had been convicted of a particularly serious crime, given the circumstances of his criminal acts. Matter of D-L-S-, 28 I&N Dec. 568 (BIA 2022).
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