Omar Frias-Camilo v. Attorney General United State

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-3733

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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

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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

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OPINION OF THE COURT

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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