9th Circuit: Suspended non-incarceratory sanction cannot form basis of conviction under INA

In a decision released last week, the Ninth Circuit Court of Appeals held that a suspended non-incarceratory sanction cannot be a predicate for a “conviction” as that term is defined by INA § 101(a)(48). California Health and Safety Code § 11377(a). He was not sentenced to any term of imprisonment. He was ordered to pay a “fine” of $100; payment of this fine was suspended. Retuta argued that the suspended fine does not constitute “some form of punishment, penalty, or restraint on the alien’s liberty” as required by INA § 101(a)(48)(A)(ii).

The Ninth Circuit largely agreed with Retuta. Retuta, No. 04-74855, slip op. at 511.

The full text of § 101(a)(48)(ii) provides:(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the 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.(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

First, the Ninth Circuit determined that § 101(a)(48)(A) “does not include suspended non-incarceratory punishments.” Retuta, No. 04-74855, slip op. at 511. To reach this conclusion, the Ninth Circuit examined the legislative history of § 101(a)(48)(A)(ii). Retuta, No. 04-74855, slip op. at 511. This section, the Court explained, is borrowed verbatim from part of the BIA’s decision in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). Ozkok, the Ninth Circuit noted, “included several minor sanctions” as “exemplars” of the punishment, penalty, or restraint required to constitute a conviction—revocation or suspension of a driver’s license, deprivation of nonessential activities, or community service. Retuta, No. 04-74855, slip op. at 511. These exemplars, however, were omitted from the INA when Congress adopted verbatim the phrase “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Retuta, No. 04-74855, slip op. at 511. As such, Congress could not have meant to include an even less serious penalty—a suspended fine—like that imposed on Retuta. Indeed, Retuta, the Court found, “suffered no loss of wealth, nor loss of liberty.” Retuta, No. 04-74855, slip op. at 511.

Second, Congress clearly addressed the role of suspended sanctions in satisfying the INA’s conviction definition in § 101(a)(48)(B). Retuta, No. 04-74855, slip op. at 512. Congress, however, only included suspended sentences involving imprisonment within the definition of conviction. INA § 101(a)(48)(B). To the Ninth Circuit, this meant that sentences not involving incarceration cannot come within the conviction definition. Retuta, No. 04-74855, slip op. at 512.

In short, the Ninth Circuit “h[e]ld that an unconditional suspended nonincarceratory sanction that has no present effect is not a punishment, penalty, or restraint of liberty under 8 U.S.C. § 1101(a)(48) [INA § 101(a)(48)(A).” Retuta, No. 04-74855, slip op. at 514.