3 Cir: Finding of guilt is not always a conviction

By University of Denver Sturm College of Law

Sep 26, 2013

The U.S. Court of Appeals for the Third Circuit held that “by ‘ judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, namely a trial or a proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.” Castillo v. Attorney General, No. 12-2073, slip op. (3rd Cir. September 03, 2013).

Castillo is a native and citizen of Peru. In 1985, he entered the U.S. without inspection, became a temporary resident in 1988, and adjusted his status to LPR in 1990. Id. at 3. In 1989, Castillo was convicted in a New Jersey court of receiving stolen property. Id. at 4. Subsequently, in 1994, the East Brunswick Municipal Court of New Jersey found Castillo guilty of shoplifting in violation of N.J. Stat. Ann. § 2C:20-11. Castillo was represented by counsel and entered a guilty plea. Id. at 3-4. He was ordered to pay a $200 fine, the costs of the item seized, as well as various other fees. Id. at 4.

Castillo admitted his criminal history and conceded removability, however, he requested relief from removability on a number of grounds. Of relevance in this case, he specifically claimed that he was eligible for cancellation of removal pursuant to INA § 240A(a) – the Attorney General may cancel removal of certain LPRs who, inter alia, have “resided in the U.S. continuously for 7 years after having been admitted in any status.” However, continuous residence ends “when the alien has committed an offense referred to in section 1182(a)(2) [INA § 212(a)(2)] that renders the alien inadmissible under section 212(a)(2) or removable from the United States under section 237(a)(2).” 8 U.S.C. § 1229b(d)(1)(B) [INA 240A(d)(1)(B)]. Under § 1227(a)(2)(A)(ii), an alien is removable, inter alia, if he ‘is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of misconduct.” Castillo v. Attorney General, 411 F. App’x 500, 501 (3d Cir. 2011). The IJ denied relief and ordered Castillo’s removal. According to the IJ, “his criminal history . . . reveals a conviction for shoplifting” in 1994 as well as a 1989 conviction for receiving stolen property. Id. The IJ said that “a conviction for shoplifting, even if categorized, under the 1994 New Jersey law, as a disorderly persons offense, can be considered a conviction for a crime involving moral turpitude,” which, with the 1989 conviction, rendered Castillo removable and ended his continuous physical presence short of the requisite 7-year period. Castillo, No. 12-2073, slip op. at 4-5.

In Castillo’s previous appeal to the Third Circuit, he asserted that “the BIA erred in ruling that his shoplifting conviction was for a ‘crime’ because under New Jersey law at the time, shoplifting was not a ‘crime,’ but rather ‘a disorderly persons offense.’” Castillo, 411 F. App’x at 502 (quoting N.J. Stat. Ann. § 2C:20-11(c) (1994)). At that time, Castillo emphasized that under “1994 New Jersey law: (1) disorderly persons offenses were petty offenses – not crimes within the meaning of the New Jersey Constitution; (2) there was no right to a trial by jury or an indictment by a grand jury; (3) a conviction did not give rise to any disability or legal disadvantage; and (4) in carrying its burden of proving the element of the disorderly persons offense of shoplifting that the defendant intended to deprive the merchant of possession, the state is aided by a presumption arising from intentional concealed possession of merchandise while on the merchant’s property.” Id at 6-7. However, the BIA dismissed Castillo’s appeal in a single-member decision, concluding that the IJ’s determination that the 1994 conviction constituted a crime involving moral turpitude was supported by the record, thereby rejecting Castillo’s disorderly persons offense theory. Id. at 5.

At issue before the Third Circuit, is what constitutes being ‘convicted of a crime’ within the meaning of § 1227(a)(2)(A)(ii). According to the Third Circuit, this issue is resolved by deciphering whether Congress would have intended the offense to constitute a crime under the Act. The Third Circuit examined the BIA’s initial interpretation of INA § 101(a)(48)(A), which defined “the term ‘conviction’ as ‘a formal judgment of guilt of the alien entered by a court.’” Id. at 17 (discussing Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004)). Meaning, “Congress meant only that the adjudicative finding of a court must carry the label ‘guilt’ or ‘guilty.’” Id. at 687. However, the BIA later acknowledged that such a reading “represented an unlikely construction given its [potential civil judgment] consequences.” Id. The BIA therefore adopted what it called “ a far more sensible reading” of § 101(A)(48)(A) – “ that by judgment of guilt Congress most likely intended to refer to a judgment in a criminal proceeding,” such as a trial or other proceeding with the purpose to determine whether the accused committed a crime and “which provides the constitutional safeguards normally attendant upon a criminal adjudication.” Id. Moreover, in Eslamizar, the BIA “outlined a series of factors that must be considered in determining whether an alien’s judgment qualifies as a conviction under § 1227(a)(2)(A)(ii) [INA § 237(a)(2)(A)(ii)], including but not limited to whether the sanctions resulting from such a conviction are punitive, whether the alien was provided with the constitutional safeguards and whether a conviction for the offense gives rise to any disability or legal disadvantage based on conviction of a crime.” Castillo, 411 F. App’x at 502.

Based on the factors laid out in Eslamizar, Castillo claimed that the BIA violated its own precedent. Petitioner’s Brief at 20. Ultimately, the Third Circuit was persuaded by Castillo, emphasizing that the 1994 New Jersey law of “shoplifting, constituted a ‘petty offense’, as opposed to crimes within the meaning of the Constitution of [the] State,” and did not afford the accused constitutional safeguards normally attendant to a criminal proceeding. Castillo, No. 12-2073, slip op. at 23. Thus, the Third Circuit granted Castillo’s petition for review and remanded the matter, specifically “to secure the benefit of the BIA’s understanding of the phrase ‘convicted of a crime’ and to “consider the broader question initially asked, i.e., whether Castillo was ‘convicted of a crime’ under § 1227(a)(2)(A)(ii). Id. at 34 (citing Castillo, 411 F.App’x at 503).

Tamikka Pate is a May 2013 graduate of Capital University Law School. Tamikka currently resides in New York and works as a Legal Fellow at Heritage Health and Housing, Inc.